JAYASINGHE V. KIRIBINDU AND OTHERS

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Jayasinghe v. Kiribindu and Others
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JAYASINGHE
V.
KIRIBINDU AND OTHERS
SUPREME COURT.
FERNANDO, J.,
AMERASINGHE, J,
DHEERARATNE, J,
WADUGODAPITIYA, J. ANDWIJETUNGA, J.
S.C. APPEAL 14/95
A. 118/87
C. KEGALLE 22403/P,
OCTOBER 16, 24 AND NOVEMBER 9,15,1995.
Kandyan Law – Diga and Binna marriage – Four essentials of a valid Kandyanmarriage – Continued residence in Mulgedera of Diga married daughter -Succession – Partition action – Interest rei-publlcae ut sit fines litium – Nemodebet bis vexari pro una et eadem causa – Res Judicata – Section 9 of theKandyan Law Declaration and Amendment Ordinance, No. 39 of 1938 -Ordinance, No. 3 of 1870 Section 39 – Kandyan Marriage and Divorce Act. No.44 of 1952 Section 28. '
One Ukkuwa had two children: a daughter named Kiribindu and a son namedRana. Kiribindu married one Piyasena on 27.7.1939. The marriage was registeredas a diga marriage. Shortly before Kiribindu’s marriage her brother Rana's wifehad died leaving her husband Rana and their three children Jayasinghe (1stdefendant – appellant) Mathupala (3rd defendant – respondent) and Somawathie(4th defendant – respondent). Kiribindu though married in diga did not leave themulgedera but stayed on and looked after her brother Rana’s three children.Piyasena died in 1946 but Kiribindu did not re-marry. She continued to live in theMulgedera. Her father Ukkuwa died in 1957. Rana died in 1971 leaving as heirshis three children aforesaid. In an earlier action D.C. Kegalle L/16312 in respectof another land between Rana and Kiribindu (reported in 1979 (2) N.L.R. 73) ithad been held by the Supreme Court on a construction of section 9 of theKandyan Law Declaration and Amendment Ordinance, No. 39 of 1938 that afterdissolution of a marriage of a diga married woman she can re-acquire her lostright to succeed to her paternal inheritance by change of her residence to themulgedera. The decision in L/16312 was by the District Judge held to be resjudicata in the present action which Kiribindu filed for partition of six lands on thebasis of inheritance from Ukkuwa. The other questions were whether Kiribinduwas in fact a binna – married daughter or alternatively whether she had regainedrights of succession appropriate to that of a binna – married daughter bycontinuously residing in the mulgedera and/or by maintaining a close connectionwith it by staying there to look after the children of her brother Rana.
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Held: (Wadugodapitiya, J. dissenting)
Since a diga marriage is one in which the wife is treated as a member of thehusband’s family, she would usually leave her parental home and take upresidence with her husband and she then forfeited her rights of inheritance to herfather’s properties. Although place of residence is an important indicator of thecharacter of the marriage, yet severance from her family by joining her husband’sfamily is the test and not the place of residence. Forfeiture of rights of successiondepends on the fact that a marriage was a diga marriage and not on whether itwas a registered marriage. The registered entry is not conclusive on the characterof the marriage and could be rebutted by evidence to the contrary.
Remaining in or returning to the mulgedera does not necessarily result in aretention or re-acquisition of rights. If a diga married woman is remarried in binnaor readmitted into her father’s family by a binna settlement clearly showing that abinna connection was intended, she regains the rights of a binna marrieddaughter to inherit her intestate father’s properties.
Section 9(1) of the Kandyan Law Declaration and Amendment Ordinance, No. 39of 1938 provides that a binna or diga marriage shall be, and until dissolvedcontinue to be, for all purposes of the law governing the succession to the estateof the deceased persons a binna or diga marriage, as the case may be. Therelevant period commences from the time the parties began to treat themselvesas married persons and to live as married persons.
Kiribindu and her husband and her father intended the marriage to be in diga andtold the Registrar so at the time of marriage. The certificate of marriage was interms of Section 39 of Ordinance, No. 3 of 1870 and section 2 of the KandyanMarriage and Divorce Act No. 44 of 1932 the best evidence of the character ofthe marriages. The best evidence rule was introduced by section 39 of OrdinanceNo. 3 of 1870. Section 28 of the Kandyan Marriage and Divorce Act, No. 44 of1952 re-enacted the provisions of section 39 of the 1870 Ordinance. The rule hascontinued to serve the useful purposes for which it was intended.
A daughter married in diga who resided in the mulgedera to play the role of aguardian to minor children at the mulgedera does not thereby acquire the rightsof a daughter married in binna.
There was nothing except for the mere fact of residence to suggest that thedaughter Kiribindu was allowed to settle in binna. On the other hand there wasthe contemporaneous recording by the Registrar of Marriages of the intention ofthe parties that the marriage was a diga marriage despite the fact that it wasknown that the residence of the daughter and her husband would be at themulgedera. The effect of her diga marriage was that she lost her right ofsuccession to the estate of her father and she had no right, title or interest in thelands she seeks to partition.
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The right to contract another marriage after the dissolution of a marriage is animportant right and the character of the second marriage is not determined by thecharacter of the first marriage. On the death of Piyasena, Kiribindu’s father couldhave arranged a binna marriage for her but he did not. Nor did he do anythingafter Piyasena’s death to manifest his intention that a binna settlement wasintended.
The essentials of a legal marriage were:
The parties must have had a connubium.
They must have not been within the prohibited degrees of relationship.
They must have cohabited with the intention of forming a definite alliance.
It was also requisite:
That the consent of parents and relations should be given; and
In the case of chief of high rank, the consent of the king.
The absence of approval of parents and relations though ordinarily stated to beone of the conditions, the question was not free from doubt whether the absenceof such approval would make the marriage null and void.
Per Amerasinghe, J:
“Undoubtedly the place of residence is an important indicator of the character ofa marriage. Ordinarily, in the absence of contrary evidence we ought to beentitled to presume that the common course of usual events consistent with theordinary practices of Kandyan Society followed. And so, a woman who aftermarriage lived in her mulgedera with her husband may be supposed to havebeen settled in binna. On the other hand, it would be expected that a womanmarried in diga would have been led away from her parental home. It was asymbolic manifestation of the departure of the woman to join another family andbear children who will belong to a different genes.
Such a person would live in her husband’s home or upon the property of her newfamily. However, if it was agreed that the marriage was a diga marriage, it wouldbe a diga marriage, irrespective of the fact that the bride took up residence in herfather's house … The determination of the character is, perhaps unfortunately, butnevertheless, somewhat more complex than seeking a response to the simplequestion: Where did she live?”
Per Dheeraratne, J:
An erroneous decision on a pure question of law will operate as res judicataquoad the subject-matter of the suit in which it is given, and no further. Unlike adecision on a question of fact or of mixed law and fact, an erroneous decision onthe law does not prevent the Court from deciding the same question arisingbetween the same parties in a subsequent suit according to law. Further the
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subject-matter of the previous action was different from that of the present. Hencethe decision in Rana v. Kiribindu 79 (2) N.L.R. 56 is not res judicata to bar thepresent suit.
Cases referred to:
Ranhotidewayalage Rana v. Ranhotidewayalage Kiribindu (1978) 79 (2)N.L.R. 73, 79.
Ukkoo Hamy v. Appu (1851) (1843-55) Ramanathan 56.
Herathhamy v. Podihamy( 1909) 3 Leader L.R. 58.
Herathgedera Malhamy v. Belikotoowe Punchyralle 14 February 1828: HayleyAppendix II, p. 48.
Herathgedera v. Belikotoowe, 14 February 1828, Hayley: Appendix II p. 49.
Palleywatte Nandoowa v. Kaluwa Dureya, 8 September 1825 Hayley:Appendix II P. 49.
Yattewerragedera Rammeia v, Kowraiie 2 August 1822, Hayley: Appendix IIPP. 49, 50, 97.
Chelliah v. Kuttapitiya Tea and Rubber Co., (1932) 34 N.L.R. 89,93.
Mampitiya v. Wegodapela (1922) 24 N.L.R. 129.130, 131,132,133.
James v. Medduma Kumarihamy (1957) 58 N.L.R. 560.
Menikhamy v. Appuhamy, C.R. Ratnapura 12653 S.C. Civ. Min. 10 June 1913:Modder 430,431, (1913) 5 Bal. N. 38.
Kalu v. Howwa Kiri(1892) 2 L.R. 54; 1 S.C.R. 140.
Punchi Menike v. Appuhamy et al (1917) 19 N.L.R. 353,354,358.
Fernando v. Bandi Silva (1917) 4 CWR 9,12.
Kuma v. Banda (1920) 21 N.L.R. 294.
Podinona v. Herat Banda (1985) 2 Sri L.R. 237.
Dingiri Amma v. Ratnatilaka (1961) 64 N.L.R. 163, 166,167.
Punchimahatmaya v. Chartist,1908) A.C.R. 89.
Kotmale v. Duraya (1907) 3 Bal. 122.
Ukku v. Kirihonda(1902) 6 N.L.R. 104,106.
Dingirihamy v. Mudalihamy et al: D.C. Kurunegala 4402 – S.C. Civ. Min. of 15October 1912; 16 N.L.R. 61.
Dissanayake v. Punchi Menike (1953) 55 N.L.R. 198.
Tennakoon Mudiyanselage Ukku Amma and Others v. Vidanagamage BeetaNona S.C. Appeal No. 32/94, S.C. Minutes 13 September 1994.
Bindi Menika v. Mudianse C.R. Kegalle 2394 S.C. Civ. Min. of 22 March 1898.
Dingiri Amma v. Ukku Amma (1905) 1 Bal. 193.
Gonigoda v. Dunuwila 9 July 1827: Hayley Appendix II p. 70.
Doratiyawe v. Ukku Banda Korale (1909) 1 Current L.R. 259.
Re Mahara Ratemahatmaya (1859) 2 Lorensz 287.
Dissanekgedera Sirimal Etena v. Her brother Kooderalle, 28 February 1828:Hayley Appendix II p. 42.
Wettaewa Bandi Appu and Kirry Menike v. Ismail Naide: Hayley: Appendix IIp. 43.
Kattikande Menikhamy v. Baala Etana 10 November 1826 Hayley: Appendix IIp. 45.
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Galagamegedera Alenso Naide v. Heykeladeniya Etenec, 25 February 1828Hayley: Appendix II p. 43.
Udurawela Polwattegedera Punchyralle v. Do. (V.P.) Dukgannaralle. 30January 1824; 13 March 1826 Hayley: Appendix II p. 57.
Ambaliyadde Case, 03 December 1824: Hayley: Appendix II pp. 43-44.
Boombure Kalu Etena v. Punchyhamy, 22 November 1823, 01 July 1825:Hayley: Appendix II p. 44.
Mahengedera Baale Etena v. Riditotuwegedera Ukkuralle, 8 July 1823; 03May 1825 Hayley: Appendix II pp. 42, 43.
Tikiri Kumarihamy v. Loku Menika (1857) (1872-76) Ramanathan 106.
Babanissa v. Kaluhami(1909) 12 N.L.R. 103,105.
Bandy Ettene v. Bandy Ettene (1873) 2 Grenier 115.
Samerakongedera Punchyralle v. Punchi Menika 01 April 1829, Hayley:Appendix II pp. 44, 45.
No. 590 Madawelatenne Case 03 May 1834: Marshall's Judgments p. 329,331.
Batterangedera Horatale v. Her full brother Kalua 5 May 1828 HayleyAppendix II 45 – 46.
Meera Saibo v. Punchirala (1910) 13 N.L.R. 176.
Ram Etana v. Afe/cappu(1911) 14 N.L.R. 289.
Appuhamy v. Kiri Menika (1912) 16 N.L.R. 238, 239, 240.
Ukku v. Pingo (1907) 1 Leader 53.
Tikiri Kumarihami v. Loku Menika and Others (1875) (1872-76) Ramanathan 106.
Siripaly v. Kirihame (1917) 4 C.W.R. 157.
Banda v. Angurala (1922) 50 N.L.R. 276, 277, 278 to 280.
Gunasena and Others v. Ukkumenika and Others (1976) 78 N.L.R. 529, 531,534, 535, 536.
Appu Naide v. Heen Menika (1948) 51 N.L.R. 63, 64, 65.
Alice Nona v. G. Sugathapala (1967) 71 N.L.R. 24.
Yaso Menika v. Biso Menika (1963) 67 N.L.R. 71.
Sinno v. Appuhamy(1913) Bal. N.C. Vol. 1 p. 80.
Regina v. Opaiangu, Modder 260 -261.
Kiri Banda v. Silva (1913) 1 Bal. N.C. 83.
Dullewe v. Dullewe (1913) 1 Bal. N.C. 85.
Seneviratne v. Halangoda (1912) 22 N.L.R. 472, 473.
H. P. James v. Medduma Kimarihamy (1957) 58 N.L.R. 560.
Waring Westminster Bank Ltd., v. Burton Butler and Others (1948) 1 All ER 257.
Dingin' Menika v. Punchi Mahatmaya (1910) 13 N.L.R. 59.
Appuhamy v. Punchihamy (1914) 17 N.L.R. 271.
Morais v. Victoria (1968) 73 N.L.R. 409, 413, 417.
Krishnan v. Thurairajah (1969) 62 N.L.R. 511.
Katiritamby v. Parupathi P/'//a/'(1921) 23 N.L.R. 209.
Guneratne v. Punchibanda (1927) 29 N.L.R. 249.
K. Subramaniam v. Kumaraswamy( 1955) 57 N.L.R. 130,131.
Marassenagedera Kaloomenika v. Udagedera Punchymenika, 19th March1824; Hayley, Appendix II p. 44.
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APPEAL from judgment of the Court of Appeal.
Tilak Marapone, P.C. with N. Ladduwahetti and Sarath Weerakoon for 1stdefendant-appellant.
R. K. W. Goonesekera with G. L. Geethananda for plaintiff-respondent.
Rohan Sahabandu for 2nd defendant-respondent.
Manohara de Silva for 4th defendant-respondent.
No appearance for 3rd defendant-respondent.
Cur. adv. vult.
April 4, 1996.
AMERASINGHE, J.
I am in agreement with my brother Dheeraratne that the decisionreported sub. nom. Ranhotidewayalage Rana v. RanhotidewayalageKiribindu(,) does not operate as res judicata. I agree with my brotherDheeraratne that the appeal should be allowed and that thejudgments of both courts below should be set aside and thatjudgment shall be given and order made and entered dismissing theplaintiff’s action.
Ukkuwa had two children: a daughter, named Kiribindu, and a son,named Rana. Ukkuwa died in 1957. The matter in issue is whetherKiribindu (the plaintiff-respondent) was entitled to inherit a moiety ofher father’s intestate estate and thereby acquired an interest in thelands sought to be partitioned in the action instituted by her.
The 1st defendant-appellant, and the 3rd and 4th defendant-respondents, who are the children of Rana, maintain that Kiribinduwas married in diga and thereby lost her right of succession to herfather’s estate.
Kiribindu’s position is that, although her marriage was registeredas a diga marriage, she never left her mulgedera, after her marriageto Piyasena. She had continued to live there with her husband,Piyasena, until his death and ever afterwards. A diga married womanlives in her husband’s home, whereas a binna married daughter livesin her father’s home or properties. She had never lived in any placeother than in her father’s house. In the circumstances, Kiribindu wasin fact a binna – married daughter or, alternatively, she had regained
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rights of succession appropriate to that of binna – married daughterby continuously residing in the mulgedera and/ or by maintaining aclose connection with it by staying there to look after the children ofher brother Rana, whose wife had died shortly before Kiribindu’smarriage to Piyasena.
Both parties rely on section 9 (1) of the Kandyan Law Declarationand Amendment Ordinance which refers to diga and binnamarriages. The Ordinance does not define what these terms mean,and therefore it is necessary to try to ascertain what these termsmean, for the decision in the matter before us rests entirely upon thequestion whether the marriage of the plaintiff-respondent, Kiribindu,was a diga marriage or a binna marriage.
BINNA MARRIAGE AND DIGA MARRIAGE
J.Armour, Niti Nighanduwa or Grammar of (Kandyan) Law, (1842)(Perera’s Edition) (p. 10), and Sawers (Memoranda of the Laws ofInheritance & C., and notes on Sir John D'Oyly's exposition of theKandyan Law by Simon Sawers, Judicial Commissioner (1821-1826),Kandyan Provinces, Ceylon, commonly called Sawers' Digest of theKandyan Law Ed. by Earle Modder (1921), (p. 31), (p. 31), stated thatmarriage among the Kandyans may be considered as of twodescriptions: (1) marriage in diga-, and (2) marriage in binna. Thisposition is accepted by Frank Modder, The Principles of KandyanLaw, 2nd Ed. (in collaboration with Earle Modder), (1914), paragraph126, p. 229, as well as by F. A. Hayley, in his Treatise on the Lawsand Customs of the Sinhalese including the Portions still survivingunder the name Kandyan Law(1923) at p. 193.
In paragraph 127 at p. 229 Modder states that “A marriage in digais when a woman is given away, and is, according to the terms of thecontract, removed from her parents' abode, and is settled in thehouse of the husband.”
In his “Comment” to paragraph 127, Modder states as follows:
Armour, 5, – The word diga from di, root, da, to give, is, according
to some scholars a derivative from dirga, long, the bride being
sent away to a distance, that is to her husband’s house – The
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conducting of a wife to, and the living in the husband’s house or inany family residence of his, or if he does not own house and lands,the taking her as his wife and the conducting away from her familyto a place of lodging, constitutes a diga marriage. – Thepredominant idea is the departure or removal from the family orancestral home. This is of the same nature as marriages amongEuropeans and is the more common of the two marriages. Aplurality of daughters in a family necessitates this mode ofmarriage with regard to the majority of them, the common propertybeing too limited in extent to be enjoyed by a numerous family. Themarriage of the daughters and their departure from the parentalresidence generally operate a forfeiture of the inheritance andthereby reduce the number of shareholders …
Later, in paragraph 128 at p. 232, Modder states that “A marriagein binna is where the bridegroom is received into the house of thebride, and according to certain stipulations, abides therein.” In his“Comment” to that section, Modder (232-235) makes the followingexplanation:
Armour 5; Sawers, 34, – The word binna seems to be derived fromthe fact of the husband coming or entering (ba, to come ordescend) into the wife’s family. The term is invariably connectedwith the word bahinawa, going down. Other derivations makebinna a contraction of bihini, which again is derived from bhagini(root bhag) to divide, to take oneself, possess, enjoy carnally); ormake it equivalent to bhinna, broken split, merged, united. – Thisform of marriage occurs only in cases where the bride is anheiress or the daughter of a wealthy family in which there are fewor no sons. The bridegroom does not, by such a union, acquireany right to his wife's property, which remains her own, and subjectto her sole control… In a binna connection, the wife is the head ofthe family, and she alone can regulate the management of thehousehold. The whole property, movable and immovable is subjectto her will, while the husband has no control over any portion of itduring her lifetime. He is, besides, bound to obey her, and issubject to all her whims and caprices; she may even order him outof her house at any time he happens to incur either the displeasureof her parents, or, which is more frequent, the jealousy of herself.
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The right of expulsion was also exercised by the brothers, and attimes, by the children of the wife by a former bed. The position of abinna husband was, under all the circumstances, a precariousone; whence had arisen the old Kandyan adage that a husbandsettling in binna should always have ready at the door-way hiswalking-stick, a torch, and talipot, articles of travel, indispensableto an emergency, for he may be unceremoniously turned out atany moment, no matter at what time of the day, and in whatweather, he would have to depart and find his way out. On thedeath of the wife intestate, her children and their issue, and failingthem, her ascendants and collaterals, succeed to her property inpreference to her binna husband …
Modder (p. 232) quotes Chambers’ Encyclopaedia Britannica asstating that:
“A marriage in beenah is especially interesting because of thedisclosure of it which is given in the book of Genesis. In beenahmarriage, (the word is taken from Ceylon), the man goes to livewith his wife’s family usually paying for his footing in it by service,he is, in general an unimportant person in the family, and thechildren are not his, – they belong to the family, and the kindred ofhis wife. ”
The emphasis is mine.
At p. 233 Modder quotes Genesis xxiv, 1-8 as stating: "Now Jacobmade a beenah marriage" and considers other Biblical cases. Healso points out at p. 234 that "Among the Semites of Arabia, beenahmarriage was maintained for women down to a comparatively lateperiod … Marriage by purchase ultimately supplanted the beenahmarriage among the Hebrews and became the prevailing marriageamong the Arabs …”
The subordinate position of a husband married in binna in relationto rights of succession to the properties of his wife does not explainwhy his wife was entitled to succeed to her father's properties,whereas if she had been married in diga, she would have forfeitedher rights to inherit her paternal properties, her brothers and binna -married sister’s, as Sawers (1), very significantly, puts it “or rather
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their children” (See also Hayley: 372), alone becoming entitled tosuch properties. (See Ukkoo Hamy v. Appu<2 Herathhamy v.Podihamym).
A diga marriage was not a device to get rid of surplus daughters;nor was a binna marriage a device to find some compliant male whowas willing to endure the “whims and caprices” of an “heiress".Usually, a daughter who was married in diga was given her dowry,which was ordinarily a matter of arrangement between the bride'sparents and the bridegroom and his family. There have always beenwomen, including Kandyan women, who preferred to do what theywished rather than conforming with traditional arrangements. Wherea woman married of her own accord, her marriage would, as we shallsee. be a diga marriage. A diga married woman became a memberof her husband’s family and ceased to be a member of her parentalfamily for purposes of succession to her father. She was excludedfrom the succession to her father’s estate “chiefly due to herseparation from the father’s house and union with a different family tobear children who will belong to a different gens.” (See Hayley at 331and 333).
On the other hand, if the daughter had been married in binna, sheremained a member of the father’s family for the purposes ofsuccession and shared her father’s estate equally with her brothers(D.C. Kandy 706 1834 Austin 10), and while her own title was, insome cases, defeasible, she transmitted an absolute interest to herissue. (Hayley 370, 378). Attention is drawn to the words Iemphasized in the passage quoted by Modder from Chambers’Encyclopaedia and to Sawer’s observation “or rather their children",quoted above, in referring to a binna – married daughter’s rights ofsuccession to her father’s property: These observations indicate thereason why a Binna – married daughter inherited her father’s propertyand why her children inherited her father’s property: They weremembers of the daughter’s father’s family.”
Hayley (p. 167) explains the binna form of marriage in thefollowing words:
“The binna marriage is a device similar in effect, and probably akin
to, the Indian method of raising up by “an appointed daughter” a
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son who shall perform the religious rites necessary for thesalvation of the grandfather’s soul. "Since from the hell called putthe son preserves the father, therefore putra was he called."
After citing Manu IX. 138 in support of the above proposition, andstating that “We find the term bhinna-gotra sapindas in Bengalapplied to kinsmen sprung from a different family in the male line,such as a daughter’s son: Mayne, Hindu Law and Usage, 7th Ed:pp. 680, 787”, Hayley (167) states as follows:
“In a Buddhist Community the necessity of obtaining a putra forthe maintenance of prosperity in the future life did not exist; but theadvantage of recognizing a daughter’s son as heir, on the failure ofsons, is obvious, when the desire of keeping property in the familyis borne in mind. The religious foundation for the usage becomes asecular one. Although this may be its later history, the binnamarriage has probably come down from a time when descent wastraced through females.”
Although if a daughter was married in diga she lost her rights ofinheritance to her father's lands, yet a diga married daughter wasnever abandoned by her family. Her rights of succession to herfather’s properties was another matter. If she returned to her parentshome, e.g. on account of the dissolution of the marriage by death ordivorce, or because of ill-treatment or because she had beenreduced to penury by her husband’s misfortune or bad conduct,although she did not ordinarily recover any right to inherit (Armour 65-66; Niti. 62, 65, 66), she was entitled to live in the mulgedera andreceive support. (See Sawers P. 5; Hayley 384, 388). Moreover, adiga – married daughter was excluded from inheriting her father’sproperty only if there were sons, binna – married daughters, orunmarried daughters, by the same wife or issue of any of them, in herfather’s family. (Hayley, 370, 389). Thus in Herathgedera Malhamy v.Belikotoowe Punchyrallem, Heratralle, the proprietor, died leaving twosons and a grandson, who was the only child of the proprietor’sdaughter who had been married in binna (after having previouslylived in diga with the same husband) and had predeceased herfather. One third of Heratralle’s estate was adjudged to the grandsonby right of his mother.
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In Herathgedera v. Beiikotoowe{5 Bajooralle having died, hiswidow and two children (both daughters) quitted the deceased'sfamily house, leaving the estate in possession of Bajooralle’s motherand his deceased binna sister's son. These two daughters weregiven away in diga by their mother, but were notwithstandingdeclared to be his lawful heirs, in preference to his nephew (his binnasister's son) and to his mother. One of the daughters died in diga.
In Palleywatte Nandoowa v. Kaluwa Dureyal* the deceased’s onlydaughter was preferred to his brother’s son.
In Yattewerragedera Rammela v. Kowralle(7 it was held that it isnot according to Kandyan custom that a brother has a right to ashare of a deceased brother’s property in the event of the deceasedbrother leaving but female issue. On the contrary an only daughterhas a right to inherit the whole of her father’s share of the parvenyproperty.
Being a matter that determined rights of succession, it mustbe expected that what the character of a marriage was goingto be would be carefully considered by the parties to the marriageand their parents and not left to be casually determined. As Garvin,SPJ explained in Chelliah v. Kuttapitiya Tea and Rubber Co.m (supra)at p. 94 "Whether a marriage is to be diga or binna would naturallybe determined by the negotiations which precede the marriage."Hayley (p. 194) said that “Whether any particular alliance isof the nature of binna or diga is a question of fact, not dependent onany particular form or ceremony, but on the intention of theparties and their parents.” The intention of the parties andtheir families was stressed by Bertram, C.J. in Mampitiya v.Wegodapelam.
In that case, at p. 130, Bertram, CJ. said:
“A marriage is a consensual contract. If there is any question as to
whether any particular marriage has a particular character, that is
a question of the intention of the parties.”
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At p. 131 Bertram, C.J. said:
“We start, therefore, with the conclusion that the marriage actuallycelebrated, according to the intention of the parties, and thoseconnected with them, was a diga marriage.”
Later, at p. 132, the Chief Justice said:
“I think … that we must take it to be the law that what works theforfeiture is not the ceremony, but the severance. No doubt bycontracting a marriage in diga, in which the bride’s familyparticipated, the parties bound themselves to each other and thefamily that the bride should be conducted in accordance withcustom, and should settle in the house of her husband.”
USUAL PLACE OF RESIDENCE ACCORDING TO CUSTOM
Since a diga marriage was one in which the wife was treated as amember of the husband’s family, it would be usually agreed that thebride would leave her parental home and live with her husband andbecome a part of his family. And so, after the celebration of such amarriage, the bride would be expected to be conducted inprocession to the home of her husband. And if the woman went awayto become a member of her husband’s family, she forfeited her rightsof inheritance to her father’s properties. As L. W. de Silva, AJ said atp. 565 in James v. Medduma Kumarihamyl'° we should applysection 114 of the Evidence Ordinance and hold that:
“In the absence of evidence to the contrary, we are entitled topresume that, according to the terms of the marriage contract, thecommon course of natural events followed consistent with theordinary habits of Kandyan society, resulting in a severance of thediga woman from her father’s house. This involved a forfeiture ofher right to the paternal inheritance.”
SEVERANCE FROM HER FAMILY BY JOINING ANOTHER FAMILYAND NOT THE PLACE OF RESIDENCE IS THE TEST
Ordinarily, if there was a “conducting away" after the celebration ofa marriage, it was indicative of the fact that the daughter was marriedin diga. Consequently, her rights of succession would be determined
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by reference to her status as a diga married daughter. The fact that adiga married daughter usually lived in her husband’s house, and thata binna married daughter usually lived in her father’s house, however,did not necessarily mean that the test of the character of a marriagewas the place of her residence. The mere fact that a daughter wentaway from the mulgedera and was physically separated from it didnot mean that she thereby contracted a diga marriage andconsequently forfeited her rights of inheritance to her father’sproperties. That would have been the case if what brought about theforfeiture was physical severance from the mulgedera. However, thatwas not the law. The crucial question is not her physical separationfrom the mulgedera, even to live with a man, but whether the womanwent to live with the man as his wife and became a member of hisfamily. In Menikhamy v. Appuhamy(" the daughter left home, takingservice as a cook and thereafter becoming the mistress of a mancalled Muniandy.
De Sampayo, J. said:
“It is the going out in diga that works the forfeiture: that is to say, thewoman should be conducted by, or go out to live with a man as hiswife. … Now the plaintiff did not leave her home with any suchintention. She left for the purpose of employment in the first instance,and her subsequent relations with the Tamil man did not, in myopinion, constitute a case of going out in diga. The commissionerthought that the reason for forfeiture in her case was strongerbecause she brought disgrace on her family. But the forfeiture underthe Kandyan law, was not based upon any circumstance of disgraceto the family, but rather upon the primitive idea of severance offamily ties involved in a woman going out and becoming as itwere a member of the husband’s family….”
The emphasis is mine.
In Kalu v. Howwa Kiri™, Lawrie, J observed that:
”… the old disability still attaches to the act of being conductedfrom a father's house by a man and the going with him to live ashis wife in his house.”
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The emphasis is mine.
In that case, Lawrie, J. said that a woman married in diga "ceasedto be a member of her father’s family and she did not regain her fullrights even though she returned.”
The emphasis is mine.
In Punchi Mertike v. Appuhamy et a/.(13), Wood Renton, J. at p. 354said:
"The general rule undoubtedly is that when a woman marries indiga, that is to say, when she is given away, and is, according tothe terms of the contract, conducted from the family house, ormulgedera, and settled in that of her husband, she forfeits herright to inherit any portion of her father’s estate. But this forfeiturewas an incident, not so much of the marriage, as of the quitting bythe daughter of the parental roof to enter another family…"
The emphasis is mine.
In the same case, De Sampayo, J. said at p. 358:
“The point to be kept in view in all cases, I think, is that theessence of a diga marriage is the severance of the daughter fromthe father’s family, and her entry into that of her husband and
her consequent forfeiture of any share of the family property.”
The emphasis is mine.
In Fernando v. Bandi SilvalU), Wood Renton, C.J. said that in thecase of a daughter married in diga:
”… forfeiture is due not so much to the marriage as to theseverance, effected by the marriage, of the daughter’s connectionwith her father’s house. …”
The emphasis is mine.
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In DingiriAmma v. Ratnatilaka(,7 Tambiah, J. said:
“It is going out in diga and severance from the mulgedera duringthe lifetime of the father which brings about forfeiture and notmerely a temporary departure.”
The question whether a marriage is to be treated as diga or binna,with great respect, does not depend on whether there was a’temporary’ departure from or, conversely, a permanent residence in,the mulgedera, but whether, in the circumstances, it could be heldthat there was a severance from the mulgedera, not in the sense ofphysically leaving her anscestral home, but in the sense, as it were ofthe destruction, of "the daughter’s connection with her father'shouse”, as Wood Renton J. explained in Fernando v. Bandi Silvalu),ceasing “to be a member of the father’s family”, as Lawrie, J. put it inKalu v. Howwa KirP2 or as Wood Renton, J. explained in PunchIMenike v. Appuhamy03) (supra), quitting the parental roof “to enteranother family" or as de Sampayo, J. explained in Menikhamy v.Appuhamy"' (supra), the daughter had gone out “becoming as itwere a member of the husband's family".
CHIEF JUSTICE BERTRAM'S ERRONEOUS OBITER DICTUM INMAMPITIYA V. WEGODAPELA
Bertram, C.J. in Mampitiya v. Wegodape!am said:
"… we must take it to be the law that what works the forfeiture isnot the ceremony, but the severance. No doubt by contracting amarriage in diga, in which the bride’s family participated, theparties bound themselves to each other and the family that thebride should be conducted in accordance with custom, andshould settle in the home of her husband.”
There is no difficulty in accepting that as an accurate statement ofthe law. However, with great respect, the following observations of theChief Justice are misleading:
“But if this, for whatever reason, was not done, and, if with theacquiescence of her family the bride remained in the mulgedera,then the forfeiture was never consummated.”
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In the case before Bertram, C.J., although the certificate ofmarriage showed that the daughter had been married in diga, it wasestablished that she had not been formally conducted to herhusband’s house; that she continued to live in the mulgedera, whereher first two children were born and brought up; that she did not go toher husband’s home, except, possibly for a visit, during the earlydays of her married life, and also for a few months at a later date,during a period in which there was a family estrangement, and inwhich her third child was born at her husband's old home. During thisabsence, the other children of the marriage remained with the wife’sfamily. Apart from this, though her husband was from time to timeliving away from her in the discharge of official duties, she lived atfirst at the mulgedera of the family, subsequently, at a neighbouringwalauwa purchased by her brother, and afterwards again at themulgedera, and (apart from the period of estrangement abovereferred to) she never at any time cut herself off from the family.Moreover, there was the fact that the daughter and her husband hadsold a part of the walauwa “inherited by her brother” to a Colomboproctor, without any “effective step" being ever taken “to bring abouta forfeiture of the (woman’s) interest.” In the circumstances, it washeld that, although the woman had been married in diga, no forfeitureof her rights had been incurred and that she had retained her rightsof inheritance. There was, therefore, not merely acquiescence in herresidence but a recognition of her rights of ownership in heranscestral properties.
With great respect, neither the dicta cited by the Chief Justice fromthe decisions in Kalu v. Howwa Kiri™, Menikhamy v. Appuhamy(,,),Punchi Menike v. Appuhamy™, nor the decision in Fernando v. BandiSilva™, referred to by the Chief Justice support the conclusion that if“for whatever reason” the daughter remained in the mulgedera withthe “acquiescence of her family”, then the “forfeiture was neverconsummated”. “Consummation of the forfeiture”, had never beenreferred to in any earlier case. The essence of a diga marriage wasnot the physical severance (of which it might have been evidence),but the leaving of her family for the purpose of entry into thehusband’s family. The reason for being in the mulgedera is always animportant consideration, for upon it may depend the character of themarriage. Was her presence due to her being settled in binna or
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because of some other reason, such as destitution or a familyarrangement? Moreover, mere acquiescence on the part of her familyin her living in the mulgedera did not per se convert her digamarriage into a binna marriage: The acceptance of the daughter,notwithstanding her earlier marriage in diga, as a binna – marrieddaughter, either married to the same man or to another man, is quitea different matter.
Bertram, C.J. said that his view of the law was “confirmed by twocircumstances". “The first is this: If a woman, without any legalmarriage, leaves her mulgedera and settles in the home of a man, ina relationship of the same nature as a diga marriage, she therebyforfeits her right of inheritance. (See Modder p. 244, Kalu v. HowwaKiri™) (supra) and the other cases cited in the same paragraph.”
In Kalu v. Howwa Kiri™, the question was whether a woman whosemarriage was not registered was thereby deprived of her rights ofinheritance, for there was no valid marriage in terms of the law whichmakes registration a sine qua non for a valid marriage. (Cf.* Kuma v.Bandal'5)-, Podi Nona v. Herat BandaW). Lawrie, J. held that,notwithstanding the law relating to registration, “the old disability stillattaches to the act of being conducted from a father's house by aman and the going with him to live as his wife in his house.” Therelevant fact was that the woman had not merely departed from herparental home to live with a man, but departed to live with him in digamarriage.
Bertram, C.J. drew attention to “other cases" cited by Modder atp. 244 (p. 255 2nd Ed.). I shall now examine those cases.
In Punchimahatmaya v. Charlism, Hutchinson, C.J. and Middleton,
J.held that under Kandyan Law a woman who leaves her parentalhouse and makes her husband’s house her abode and lives in digawith him, although she contracts no legal marriage, forfeits her rightto her paternal inheritance.
In Kotmale v. Duraya(19) Wendt, J. held that under Kandyan Law awoman going out in diga would not be entitled to claim a share of her
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paternal inheritance although she may not have contracted a legalmarriage.
In Ukku v. Kirihonda(20,1 a Kandyan woman, having for two yearscohabited with a Kandyan man in the mulgedera of her father, wentwith that man to his house and lived in it for some years, and theirmarriage was then registered. The marriage certificate described themarriage to be a binna marriage. Moncrief, A.C.J. held that “theevidence of the register, good as it is prima facie, may be rebutted byevidence. The Commissioner had accepted the fact that the womanhad many years ago left the parental house and married in diga.Moncrief, A.C.J. upheld that view. It was argued in that case that thedate of marriage was the date of its registration, 1894, and that theparties had at that time declared their marriage to be a binnamarriage. The question was, it was submitted by counsel, therefore,settled by the declaration of the parties. Moncrief, A.C.J. said asfollows (at p. 106):
“If (learned counsel, Mr. Bawa) is right with regard to the date ofthe marriage, I think it is possible that his argument would hold,because if the parties married in 1894 and at the time declaredthey were marrying in binna, and the date given was the real dateof the marriage, I am not aware of any reason to prevent them fromdoing what they intended to do, i.e., to contract a marriage inbinna, so that the argument put forward on the other side to theeffect that, as the parties were living together in 1894 in thehusband’s house, a marriage in binna could not be set up, wouldprobably fail. But Mr. Pereira further urged that the date of themarriage given in the register does not conclude the parties, andthat the real date of the marriage is clearly shown from the termsof the Ordinance to mean the date at which the parties began totreat themselves as married persons and to live as marriedpersons.
Reference on that point was made to section 11, according towhich “no marriage contracted since the Ordinance No. 13 of1895 came into operation, or to be hereafter contracted, shall bevalid unless registered in the manner and form” as thereinprovided.
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The question is what the word “marriage" means there. Mr. Pereirasuggested, and with some reason I think, that it means anyconnection instituted by rites or ceremonies which, according tocustom, would be considered a valid marriage but for the specialprovisions of the statute law. If that interpretation of the word iscorrect, I am inclined to think his argument to the effect thatsubsequent registration dates back to the institution of their irregularmarriage is correct, because the provision is to the effect thatsomething shall be valid upon registration, and that something is anirregular marriage, which is void for want of registration, and possiblytook place some years before.
With some diffidence I am inclined to think that subsequentregistration dates back to the original beginning of the connectionbetween the parties. … I think the appeal should be dismissed,inasmuch as the question comes ultimately to be, what the conductof the parties was when they came to live together."
After referring to the decision of Moncrief, J, Modder (p. 255)refers to a decision in Dingirihamy v. Mudalihamy et aP' Thatdecision was later reported in 16 NLR 61. In that case Pereira, J.agreed with the decision of Moncrief, J. in Ukku v. Kiri Honda™ andheld that "the registration dates back to the actual native ceremoniesperformed for the piirpose of constituting the marriage.”
In Kalu v. Howwa Kiri™, Punchimahatmaya v. Charlis™, Kotmale v.Durayam, Ukku v. Kirihonda(20) and Dingirihamy v. Mudalihamy™,(see also Dissanayake v. Punchi Menikel22) and TennakoonMudiyanselage Ukku Amma and Others v. Vidanagamage BeetaNona™), there were marriages. They were at the time they wereentered into not registered, but the man and woman in each of thosecases had contracted marriages according to the laws, institutionsand customs in force, and were diga or binna marriages. Foreituredepends on the fact that a marriage was a diga marriage and not onwhether it was a registered marriage.
A word of explanation about the registration of marriages wouldperhaps clarify the matter. There being no written law to regulate thesubject of matrimonial alliances, with a view to preventing or
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minimizing what were regarded as “loose and casual connectionsand fitful cohabitations of the sexes, with the paternity of the offspringresulting from such pernicious intercourse, ever enveloped in a cloudof doubt and uncertainty” (Modder p. 222), “a number of very agedKandyan Chiefs, to whom, in the course of nature, marriage must beof very little concern, waited upon Sir Henry Ward [the Governor] andasked that all marriages in the Kandyan Provinces might be restrictedand registered. This was gravely cited as an expression of opinion infavour of an Ordinance. No wonder the late Lord Lytton [Secretary ofState for the Colonies] was amazed and sceptical. Experience hadshown that there was at that time, not only no widespread desireamong the Kandyans for the change, but that in many outlyingdistricts at some little distance from the central capital, the peoplehad never heard of the proposal, until after the passing of theOrdinance No. 13 of 1859.” (Digby, Life of Sir Richard Morgan).
Instead of confining itself to the introduction of a system ofvoluntary registration, the Ordinance attempted at regulating thestatus of all existing unions contracted according to the customs ofthe country. Further, it provided that future registered marriages couldonly be dissolved by the tedious and expensive process of a legalsuit for divorce on grounds similar to those prescribed by EnglishLaw. As Modder pointed out (pp. 223-225), the Ordinance did notwork very well. Indeed, the District Judge of Kandy, Mr. Berwick, saidthat “the effect of the new law was to bastardize and disinheritmultitudes of the generation then being born, who would otherwisehave had under the old law the status of legitimacy … They wereunsettling the rights of the property of the next two generations, andmust foresee an immense flood of litigation and discontent and ofgrievous moral hardship in the future.”
Despite all the tinkering which the main enactment received fromthe amending Ordinances No. 4 of 1860, 8 of 1861 and 14 of 1866,Sir Hercules Robinson (afterwards Lord Rosmead), then Governor,wrote as follows in 1898:
"It is probably within the mark to assume that two-third of the
existing unions are illegal, and that four-fifths of the rising
generation, born within the last eight or nine years, are illegitimate.
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The oldest child born since the bringing into operation ofOrdinance No. 13 of 1859 cannot now be more than nine years ofage; but fifteen or twenty years hence, or sooner, if matters be leftas they are, a state of antagonism must arise between the naturaland legal claimants to property which it is impossible tocontemplate without dismay.”
The Ordinance was not repealed, but amendments were made inenacting Ordinance No. 3 of 1870, as Sir Hercules Robinsonexplained in his opening speech in the Legislative Council in 1869, toprovide “relief for those, who under the mistaken supposition thatthey were complying with its provisions had committed bigamy, andby affording greater facilities for the dissolution of registeredmarriages in cases in which the parties to them were unable, from anincompatibility of temper, or any other cause, to live happily together.”Sir Hercules observed that "It was not forgotten that it was hopelessto force European usages and opinions in regard to such domesticconcernments upon an Eastern people, until they were themselvesprepared for the adoption of Western views of morality by an actualchange of habits…”
Indeed, the Kandyan population had been wholly unprepared forthe radical changes introduced in 1859. The strange provisionsregarding registration were largely disregarded. As Modderexplained (pp. 255-256):
“Villagers do not comply with the provisions of the Ordinance, notbecause they are immoral, or that they prefer to form illicitconnections, but simply because they will not take the trouble toregister what they and all their neighbours regard as anhonourable union without registration. It is well-known that thereexists no real objection on their part to the formality prescribed bylaw, and they are quite ready to recognize and appreciate theprovision as a necessary safeguard of the interests of the wife, asof the children. Still, the absence of registration carries no stigma,as it does among western nations, and since a thing which may bedone on any day is done on no day, it has come about that theceremony of registration is largely neglected. ”
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Marriages continued, despite the Ordinance, to be contractedaccording to custom; and as we have seen, rights of inheritance weredetermined by reference to the character of such marriages as beingbinna or diga, notwithstanding the fact that the marriages were notvalid for want of registration. As Lawrie, J. after noting the freedom ofa diga – married wife to leave her husband as well as her precariousposition on account of her liability to be "turned out whenever herhusband got tired of her" in olden times, observed in Kalu v. HowwaKiri™ {supra):
“A woman who lives in diga, but whose marriage is not registered,is in very much the same legal position as a diga married womanwas before the Kandyan Marriage Ordinance was passed. Herposition is equally free and equally precarious.”
“The Ordinance now gives privileges to those who register theirmarriages, and especially to their children, but the law as to therights of daughters married in binna or in diga has not beenchanged, and the old disability still attaches to the act of beingconducted from a father's house by a man and the going withhim to live as his wife in his house."
The emphasis is mine.
If Bertram, C.J. was suggesting on the basis of decisions like Kaluv. Howwa Kiri™ that forfeiture resulted from mere physical separationand co-habitation, with great respect, that is a position that cannot besupported. Forfeiture was the consequence of a diga marriage.
We have seen that in Menikhamy v. Appuhamy™ {supra) – thecase in which the woman left her home to take up duties as a cookand later lived with a man named Muniandy – the Court held that inthe circumstances there was no marriage in diga and, therefore, noforfeiture, “diga" and “binna” do not describe a married woman’splace of residence. They describe the nature of her marriagewhatsoever her place of habitation may be.
There must be a diga marriage for the forfeiture to come intooperation. Modder, at p. 232 and at p. 430, reports the decision ofWithers, J. in Bindi Menika v. Mudiansei24 as follows:
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“A woman, leaving home to live with a man in diga does notthereby form a diga marriage, if this man was found to have a wifeat the time."
Modder (paragraph 241 at p. 429) states that "Unless a daughterhas been formally married away in diga, or unless she obtains asettlement in the house of an acknowledged husband, she will notlose her right of sharing in the estate of her parents.” In his Commentat p. 430, he explains that if the parents had neglected to have theirdaughter married, and the daughter contracted clandestineintimacies and at times absented herself from home and livedelsewhere in concubinage, yet if she returned and her parentsreceived her again into the family, and if she afterwards remained inthe father’s house, she will not be regarded as a daughter who hadbeen disposed in diga, and she will, therefore, in the event of herparent dying intestate, be entitled to a share of the said parent’slanded property equally with her brother.
Modder cites a case reported in Armour: 61 in which it had beendecided that “A daughter, whom her father had consigned to the careand protection of some relation, being afterwards married in the saidrelation’s house to a person of another family, if the husband did notconduct her thence to his own house, that marriage will not be areckoned one in diga, and the daughter will, therefore, continue tohave a claim on her father’s estate….”
Modder also cites Punchimahatmaya v. Charlisim, (supra) Kotmalev. Durayam, (supra), and Kalu v. Howwa Kirim, (supra), and quotesMr. Justice De Sampayo’s words in Menikhamy v. Appuhamy(,1) andrefers to De Sampayo, J.’s observation in that case that it is “thegoing out in diga that works the forfeiture: that is to say the womanshould be conducted by, or go out to live with a man as his wife.
Admittedly, the contracting of a diga marriage resulted in theforfeiture of a daughter’s rights of inheritance to her father’sproperties. The fact that a marriage was invalid because it wasunregistered did not mean that there was no marriage: for there mayhave been a customary marriage; and if such a marriage was a digamarriage, the forfeiture would come into operation even though the
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marriage was not registered. Bertram, C.J., it seems, supposed thatwhere a marriage was not registered, there was no marriage.Therefore, if there was a forfeiture, it was due to the mere departurefrom the mulgedera and not on account of marriage. And thereforewhere the woman remained in her father’s house, there was nodeparture and therefore there was no forfeiture. With great respect,the Chief Justice was mistaken, for the cases show that the forfeiturewas brought into operation by the woman joining another family bycontracting a diga marriage. Where no such marriage is contracted,the departure of a daughter from the mulgedera does not result in theforfeiture of her rights of inheritance to her father’s properties.
REMAINING IN OR RETURNING TO THE MULGEDERA DOESNOT NECESSARILY RESULT IN A RETENTION OR RE-ACQUISITIONOF RIGHTS.
The view that a woman married in diga who for “whatever reason"remains in the mulgedera does not forfeit her rights or if she returnsto the mulgedera she regains her rights, if there has been ‘theacquiescence of her family', because in such a case, there has beenno “severance” from the mulgedera, is untenable. The acceptance ofthe daughter back into the household as a member of the family, inthe sense relevant to the concept of binna marriage, is the decisivematter. On the other hand, in the words of Modder (paragraph 251 p.466) “The return of a diga married daughter to the family house,either before or after the father’s death does not necessarily vest herwith binna rights.”
There is no doubt that in certain circumstances, a diga – married .daughter may acquire the rights of inheritance appropriate to that ofa binna – married daughter. Hayley at p. 389 summarizes the positionas follows:
“3. If the diga – married daughter returns during her father’slifetime, and is allowed to settle on the estate in binna with herformer husband or a new husband, she acquires all the rights ofa binna – married daughter.
If the diga – married daughter returns after her father’s death,she does not recover her right to succeed, unless the other heirs
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themselves give her in binna marriage, or expressly consentto her marriage with either her former husband or a newhusband being considered a binna marriage."
The emphasis is mine.
As it was in Mampitiya v. Wegodapelef* there was no question ofa return of the daughter to her mulgedera: in the matter before us,Kiribindu, the plaintiff-respondent, never left her parental home.However, as Bertram, C.J. observed (p. 133) in Mampitiya v.Wegodapeld9), if in certain circumstances after celebrating a digamarriage, a daughter may regain binna rights, “surely a fortiori underappropriate conditions she may also retain them.”
The emphasis is mine.
There is no dispute that Kiribindu, the plaintiff-respondent, neverleft her parental home and lived in it before and after the death of herfather. However, was she allowed to settle in binna in themulgedera? Living in the mulgedera (or on ancestral properties e.g.see D.C. Kurunegala 19107 (1873) III Grenier 115; Dingiri Amma v.Ukku AmmalK having a binna connection: cf. Gonigoda v.Dunuwila(26), cf. also Doratiyawe v. Ukku Banda Koralei27), did notautomatically confer rights of inheritance on a daughter who hadbeen married in diga. Her rights would depend on whether herresidence could be regarded as a settlement in binna in the houseor property of the father. Whether there was a settlement in binnawould depend on the establishment of that fact established by theevidence in a particular case. In Re Mahara Ratemahatmaya(2B),where a man lived for some years in the family house of a womanwith the intention of forming a marital connection, it was held byRowe, C.J. and Morgan J. that, unless there be some substantialproof to the contrary arising from a proved disparity of rank or otherlegal obstacle, that would amount to a marriage in binna.
On the other hand, as we have seen, if a daughter who had goneout in diga be divorced, or left a widow, or ill-treated or reduced topenury by her husband's misfortune or bad conduct, she is entitled,on returning to her parents, to live with them and be supported.
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However, although there was residence, that alone did not confer therights of a binna married daughter on such a person.
Sawers (Chapter I, paragraph 3 p. 2) states as follows:
“Daughters, while they remain in their father’s house, have atemporary joint interest with their brothers in the landed property oftheir parents; but this they lose when given out in what is called adiga marriage, either by their parents, or brothers, after the deathof the parents. It is, however, reserved for the daughters, in theevent of their being divorced from their diga husbands, orbecoming widows destitute of the means of support, that theyhave a right to return to the house of their parents and there tohave lodging and support and clothing from their parent’s estate;but the children born to a deega husband have no right ofinheritance in the estate of their mother’s parents.”
Armour ( p. 66) gave the following illustration:
“A daughter, whom the father had disposed of in diga having beenafterwards divorced from her husband and reduced to destitution,and having therefore returned to her father’s house and remainedthere until her father’s death, will not have thereby becomeinvested with the right of sharing in her father's estate; the wholethereof will devolve to the son and to the binna daughter.”
Indeed, a daughter in want may be allotted lands for cultivation inlieu of maintenance (e.g. see Dissanekgedera Sirimal Etena v. Herbrother Kooderalle(29), but in that event she was merely a tenant at willand acquired no vested, permanent interest, (see Hayley p. 388 andp. 390 and Wettaewe Bandi Appu and Kirry Menike v. Ismail Naidem.
Armour (p. 67) gives the following illustrations:
“But, if the diga married daughter did not return to the house of herfather until after his demise, if she came back destitute, after thedeath of her father, and if her brother did then not only allow her alodging in the house, and supply her with the necessaries of life,but if he even permitted her to have a second husband in the said
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house, and moreover, allowed her son, born under the digacoverture, to cultivate a portion of the deceased father’s lands, -all those circumstances will not invest her with the rights of (a)binna married daughter, and she will not have thereby acquired apermanent title to a portion of her father’s lands – it being herepremised that the said son and daughter were issue of the samebed.
And if a diga married sister returned along with her husband, andher brother gave them a lodging in the deceased father’s house,and assigned to them a portion of the paternal estate for theirmaintenance, temporarily, that portion will not eventually devolve tothe said sister’s issue, but will at the death of the said sister, revertto the brother, or he being dead, to his issue.
If a daughter, who had been married out in diga, did, after thedeath of her husband, and subsequent to the demise of her fatheralso, return to her deceased father’s house, and remain there inthe state of widowhood, and if she and her children, who wereborn under the diga coverture, were even allowed by her brotherto possess a portion of the father’s lands, yet such possession willnot invest her with a permanent right to that portion, and therefore,the same will not, at her death, devolve to her said children.”
In Kattikande Menikhamy v. Baala Etana®", it was stated asfollows: “ According to the only system the assessors are acquaintedwith, being that which was followed by the Maha Nadoo, and whichthey believe was enforced in all cases in every part of the Kandyancountry, the whole of the property in question should be adjudged tothe 1st plaintiff in parveny, reserving only a certain life interest thereinto her father’s widow, the defendant, and recognizing also the right ofKirry Etana, the eldest daughter, to be subsisted on the estate in caseof her being reduced to destitution. But neither the defendant aswidow of the proprietor, nor Kirry Etana their daughter, on theground of having returned to and dwelt on the estate, would beentitled to a permanent hereditary interest. From this she, KirryEtena, was cut off according to universal custom of theseProvinces by being given out in diga marriage by her father.”
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In Galgamegedera Alenso Naide v. Heykeladeniya Etenect3J), itwas decided that Loku Naide’s three sisters having been disposed ofin diga thereby forfeited their right to inherit their father’s lands, andalthough the 2nd and 3rd sisters had afterwards returned throughnecessity and dwelt on the estate and had possession of part ofthe lands, neither they nor their children were allowed to haverecovered the right of inheritance.
In Udurawela Polwattegedera Punchyralle v. Do. (V.P.)Dukgannarallel33), there were five sons and four daughters. The fatherhad divided all his lands (except a small portion) amongst his sons.All four daughters were disposed of in diga, but subsequently the 1stdaughter returned and died in the father’s family house, leaving adaughter. The 2nd daughter died in her husband’s house, leaving adaughter. The 3rd daughter returned destitute from her husband’shouse and lived in her native village. The 4th daughter died withoutissue. By the decree of court, the allotment of the father’s landswere confirmed to the sons and the reserved portion thereof wasadjudged to the surviving daughter and the child of the 1st daughter.No portion of the father's lands was allowed to the 2nd daughter’schild.
Even where there was no destitution, the return to the family homeor lands did not necessarily convert a diga marriage into a binnamarriage.
In the Ambaliyadde case134’, two brothers had four children by ajoint wife, viz., one son and three daughters. Owing to domesticdiscord, the two brothers separated and divided the childrenbetween them, one taking the son and a daughter, and the othertaking the two other daughters under his care. One of the latterdaughters, who as well as her two sisters had been given away indiga, returned to the parent’s house after her husband’s deathand in the lifetime of her father, and there lived ever since,enjoying also the produce of the garden. Her son born in digawas also brought up in her father’s house. It was decided thatthe son was the sole heir to both the fathers and the whole oftheir estate was adjudged to the son’s children. The litigating
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daughter was only permitted by the terms of the decree to haveoccupancy of part of the house during her natural life.In Boombure Kalu Etena v. Punchyhamy{3S the proprietor left threesons and a daughter. The latter was first married out in diga butreturned with her husband after the death of their parents, andher brother allowed her husband to possess a portion of thefamily estate. The daughter obtained no permanent settlement onthe estate after her return. The 1st son died without issue. The 2ndson left a daughter. The 3rd son left a son. The estate was adjudgedto be equally divided between the 2nd son’s daughter and the 3rdson’s son. The claim of the daughter (who had several husbandssuccessively in her parent’s house) was dismissed.
In Marassenagedera Kaloomenika v. Udagedera Punchyrnenikam,the proprietor had left a son and an infant daughter. The latter wasgiven away in diga in the same village, after her father’s death, buthad no possession of any part of her father’s lands from the time ofher marriage until after her brother’s death, when she recovered ashare of the lands by a decision of the chief. However, by theJudicial Commissioner’s decree, the award of the chief wasannulled and the whole of the lands were adjudged to thebrother’s children, who were all daughters.
As we have seen, Modder (p. 323) quoting Chambers’Encyclopaedia Brittanica, pointed out that in a binna marriage “theman goes to live with his wife's family usually paying for his footing init by service”. What was usual, in that regard, however, as in thematter of residence, was not an absolute test of the character of amarriage. The mere fact that services were rendered on occupiedpaternal properties does not alter the status of a diga marrieddaughter. In Mahenegedera Baale Etena v. RiditotuwegederaUkkurallem, the proprietor died leaving one son and four daughters.One of the daughters had been disposed of in diga in the father’slifetime, and another was subsequently given away in diga by herbrother; she, however, came back and lived in her father’s housewith her husband, who cultivated a portion of the land, doingservice for the same. It was decided that neither the widow nor any
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of the daughters had a right to inherit, and the whole estate wasadjudged to the proprietor’s son.
The position that the change of residence of a diga marrieddaughter does not alter the character of her marriage wasrecognized by the Supreme Court in Kalu v. Howwa Kiri™, Lawrie, J.explained the law as follows:
“In olden times, a Kandyan woman, married in diga, could leaveher husband's house whenever she chose, and was liable to beturned out whenever her husband got tired of her; but, though shethus gained only a precarious position by being conducted fromher father’s house, the legal consequences of such a conductingwere fixed. She ceased to be a member of her father’s family, andshe did not regain her full rights, even though she returned orwas sent back in a few days.”
The emphasis is mine.
Perera, AJ in DingiriAmma v. Ukku Amma{25 affirmed the generalvalidity of the principle. His Lordship said:
“The case of Kalu v. Howwa Kiri… was cited to me in whichJustice Lawrie has held that disabilities in the case of diga marrieddaughters resulted from the “act of being conducted from thefather’s house by a man and the going with him to live as his wifein his house”, and it was argued that, in that view, where once theevent took place, the disabilities remained unchanged. That is so,no doubt, as a general rule, and it may also be that generallyspeaking, a diga married daughter did not regain her full rightseven though she returned to her father, or was sent back in afew days…."
The reference to regaining “full interests” is misleading. Everydaughter, including one married in diga, is under the law entitled as amatter of right to support if she is in need of it. She does not regainany rights or interests. It is always there. As far as the rights ofinheritance are concerned, if a woman is married in diga, her return
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to the mulgedera does not automatically restore to her the rights shelost when she married, and in the words of Lawrie, J, “ceased to be amember of her father’s family”.
IF A DIGA MARRIED WOMAN IS REMARRIED IN BINNA ORREADMITTED INTO HER FATHER'S FAMILY BY A BINNASETTLEMENT CLEARLY SHOWING THAT A BINNA CONNECTIONWAS INTENDED, SHE REGAINS THE RIGHTS OF A BINNAMARRIED DAUGHTER TO INHERIT HER INTESTATE FATHER’SPROPERTIES.
Where a diga married daughter returns to her parents’ home afterthe dissolution of her marriage by the death of her husband or bydivorce, she does not ordinarily recover any right to inherit herfather’s property, whether she returns before or after her father’sdeath. (Kalu v. Howwa Kirim Punchimahatmaya v. Charlis1'8'-,Kotmale v. Durayam The Ambaliyadde Case0*').
If, however, with the consent of her parents she marries again inbinna, then her previous marriage is disregarded and the full rights ofa binna – married daughter accrue to her. (D.C. Kandy 18457 (1894)Austin’s Appeal Reps. 96; Tikiri Kumarihamy v. Loku Menika°7),Babanissa v. Kaluhamim, states as follows:
"A daughter, however, who may have been given out in deega,should she after her return to the house of her parents, with theconsent of her family, get a beena husband in the house of herparents with the consent of her family, the issue of this connexionwill have the same right of inheritance in their maternalgrandfather's or grandmother’s estate as the issue of her uterinebrothers.”
If a daughter returns to her mulgedera with the man to whom shehad been married in diga, during her father’s lifetime and is allowedto settle on the estate in binna by her father, she acquires all therights of a binna-married daughter (Hayley 389).
Armour (p. 65) states that if a daughter who had been married indiga returned with her husband and obtained a binna settlement in
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her father’s house, died before her father, leaving issue, a son, thatson will succeed to his mother’s interests in his maternalgrandfather’s estate.
Armour (p. 66) states that a daughter who had been married out indiga, but had afterwards returned to her father’s house with herhusband and dwelt there in binna-, a daughter who settled in digaand who received her father into her house and rendered himassistance until his demise; and a grand-daughter, the child of a son,who died before his father, have equal rights and the ancestor's landswill, therefore be divided equally amongst them in equal shares.
Admittedly, when he gave her away in diga the daughter wouldhave been given her dowry (see Hayley 331-336). However, the otherchildren have no vested interest in the paternal property during theirfather’s life, so that he is not prevented from disregarding the dowryalready advanced and reinstating his daughter in the family. He mustmanifest his intention of reinstating the daughter in the family. Suchan intention may (not must) be inferred from his permitting thedaughter to dwell in the mulgedera or some portion of his estate inbinna marriage. (See Hayley 385; Modder 464).
In Bandy Ettene v. Bandy Ettenem, Cayley, J. observed as follows:
“It appears to the Supreme Court that the case is substantially onein which a diga married daughter returns with her husband to herfather’s house and in which the father assigns them a part of hishouse, and puts them in possession of a specific share of lands. Incases of this kind, the diga married daughter regains her binnarights.”
for, as Armour 64, explains, “such arrangement will be equivalentto a binna settlement, and, therefore, in the event of the father’sdeath, the said daughter will be entitled, as well as her brother, toinherit a share of their father’s landed property.”
At p. 387, Hayley explains that:
“It makes no difference whether the daughter returns andcontracts a second marriage, or brings back to the paternal abode
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the husband with whom she previously departed in diga. If thereturn was before the father's death, the marriage may beconverted into a binna one, with full effect in respect ofinheritance, but it must clearly appear that a proper binnaconnection was intended. In D. C. Kurunegala 19107, (1873)Grenier 111, where a diga married daughter returned to herfather's house with her husband and was given a portion of thepaternal estate on which she built a house and residedpermanently, it was held that she had recovered the rights of adaughter married in binna. So too if the return is after her father’sdeath, there is nothing to prevent the heirs from recognizing theconversion of the marriage into binna, but stronger proof wouldpresumably be required than in the case of a new marriage,"
The emphasis is mine.
In Dingiri Amma v. Ratnatilakd'7), one of the daughters who hadmarried, after the dissolution of the marriage, had returned to themulgedera and with the acquiescence of the father, had contracted abinna marriage. Tambiah, J (Sinnetamby, J agreeing) said (at pp.166-167) that in considering whether the two other daughters whohad married in diga “re-acquired binna rights, it must be shown thatthey were not only received by [the father] and those who wereentitled to the inheritance at the mulgedera but further that they hadacquiesced in their acquiring binna rights and agreed to sharethe inheritance.”
The emphasis is mine.
In Samerakongedera Punchyralle v. Punchi Menikam, the plaintiff’spaternal grandfather and grandmother both possessed lands. Theyhad two daughters and a son. The son at first had his wife in diga,but afterwards removed with her to her parents' house and therecohabited in binna. The two daughters were both married out in diga,but one of them (the defendant) afterwards came back to her father'shouse in her father’s lifetime, accompanied by her husband and"lived there ever since as in beena". The son died in his wife’s houseleaving two children, the plaintiff and his sister. The father died next
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“having received assistance from the beena daughter for many years(just before his death he granted a scratched ola to his saiddaughter, but it was set aside as invalid by the terms of theProclamation,) DECIDED, waiving the question of the talipot, thatdefendant has a right to inherit equally with her brother as it wasproved that she resided with her husband in her house for manyyears previous to the latter’s death. Plaintiff’s claim therefore isdismissed, he being already in possession of one-half of hisgrandfather and grandmother’s estate."
It is perhaps not unreasonable to assume that the talipot, ifadmitted, might have shown that a grateful father bequeathedproperty to the daughter. In any event in accordance with therecognized principles of Sinhala laws and customs, the decision thatthe defendant had a right in the event of intestacy to inherit with herbrother was based not on the fact of residence, but rather on the factthat the father had permitted the daughter and her husband to live inhis house “as in beena”. he had attempted to reward his dutifuldaughter who is, not without great significance, described in thereport as a ”beena daughtei", notwithstanding the fact that she hadearlier been married in diga.
Modder (paragraph 250 (3) at p. 456) states that a diga marrieddaughter acquires binna rights “On returning home along with herhusband, and attending on, and rendering her father assistance untilhis death. “In his “Comment" on that paragraph, he states as follows:
“If the daughter who had been married in diga, returned along withher husband and attended on her father and rendered himassistance until his death, and if the son had been settled away inbinna elsewhere, and died before his father, leaving issue a son, insuch case, the rights of the said daughter will be equal to those ofthe son’s son, and they will accordingly be entitled to equal sharesof the inheritance. (Armour 64; Marshall 329, x.57 D. C.Madawalatenna 590, (1834 Morgan, 12 s.73.)).”
Modder (paragraph 250 (4) at p. 456) states that a diga marrieddaughter acquires binna rights “On coming back and attending on,
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and assisting her father during his last illness, and the father on hisdeath-bed expressing his will that she should have a share of hisland.” In his “Comment” on that paragraph, he states at pp. 465-466as follows:
"If the father left a son and a daughter, minors, by one wife, and ason and a diga married daughter by another wife, if that digamarried daughter came back and assisted her father during hislast illness, and if the father had, therefore, on his death-bed,expressed his will that his diga daughter should have a share ofhis lands, notwithstanding her being settled in diga, in that case,the diga daughter will be entitled by virtue of such nuncupative willto participate equally with her uterine brother, and their paternalhalf-brother and half-sister, in the father’s estate; the father’slanded property will thus be divided equally between the twofamilies, one moiety to the diga daughter and the other moiety tothe other son and daughter. (Armour, 65). Ord. No. 7 of 1840,section 2, does not recognize a nuncupative will of this nature.”
I shall deal with the Madawelatenne casem referred to by Modderlater on. I shall also deal with the question of a woman married inbinna leaving a child in the mulgedera when she subsequentlydeparted from her father’s house. What I should like to point out hereis that in a “note” to the discussion of that matter, Sawers (Chapter Iparagraph 9 pp. 3-4) refers to the case of the daughter previouslymarried in binna but later living in diga acquiring binna rights by
“visiting [her father] frequently and administering to his comfort,and especially by being present, nursing and rendering himassistance in his last illness; and this would especially be the casewhere there were two daughters and no sons either in re-establishing the right of one to the entire estate against the otherdaughter married in deega, or for a half of the estate should theother daughter be married in beena; but should there be a son,besides these two daughters, under such circumstances, and heliving at home, in that case, the son or his heirs would get the halfof the estate, and the other moiety would be divided between thetwo daughters of their heirs; but should the son have been livingout in beena, and the parent have been depending on his
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daughters and their husbands for assistance and support, in thatcase, he would only be entitled to one-third and the daughters andtheir children to one-third.”
It hardly comes as a surprise that in such circumstances a fatherwould, as a matter of reciprocity, wish to re-admit his diga – marrieddaughter into his family and thereby recognize the discharge of herfilial duties notwithstanding the fact that she had earlier gone away tobecome a part of, and to serve the purposes and interests of, anotherfamily.
The decision in Batterangedera Horatala v. Her full brotherKa!uam, also underlines the importance of the father’s permission toreadmit a diga-married daughter upon return with her husband to hisfamily. The report of that decision is in Hayley, Appendix II, atpp. 45-46. It is as follows, except for the emphasis, which is mine:
“Ukkuwa was proprietor of an estate of 5 pelahs. He had a son, thedefendant, and three daughters. One of the latter was married inbeena, the other two, of whom plaintiff is one, were given out indeega. Plaintiff had two deega husbands, but after the death ofone of the husbands, plaintiff and the surviving husband returnedto her father’s house. Ukkuwa died nine months ago intestate, butit was stated that he had settled on his first mentioned beenadaughter 2 pelahs of his land, and at his death bequeathed 5lahas to plaintiff, leaving the remainder 2 1/2 pelahs to defendant.The other daughter who continued in deega was left nothing. Asdefendant distinctly acknowledges that plaintiff returned toher father’s house with of course his permission, 25 years ago,and continued to reside in it with her husband up till her father’sdeath, this readmission into the family house restores to her allthe rights of a beena marriage …”
In Punchi Menike v. Appuhamy(,3), de Sampayo, J. said:
“The point to be kept in view in all cases, I think, is that theessence of a diga marriage is the severance of the daughter fromthe father’s family and her entry into that of the husband, and herconsequent forfeiture of any share of the family property; and the
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principle underlying the acquisition of binna rights, as I understandit, is that the daughter is readmitted into the father’s family andrestored to her natural rights of inheritance. This of course is nota one-sided process; the father’s family must intend or at leastrecognize the result.”
A WOMAN MARRIED IN BINNA MAY WITHOUT A CHANGE INREGISTRATION OR A SPECIAL CEREMONY CONVERT THECHARACTER OF HER MARRIAGE.
The second circumstance adduced by Bertram, C.J. for his viewthat if parties who had been married in diga, contrary to what wasagreed, did not conduct the bride to the husband’s home, then, for“whatever reason [this] was not done, and, if with the acquiescenceof her family the bride remained in the mulgedera, … the forfeiturewas never consummated”, was as follows: “The circumstance that if awoman, duly married in binna subsequently without any formalceremony, or change in the registration, leaves her mulgedera andsettles in the home of her husband, this of itself works a forfeiture.(See Modder, p. 247, and the Madawalatenna Case1*")."
I shall deal with the Madawelatenne Case1*" later on in consideringthe so-called “close-connection with the mulgedera" theory.
Modder (paragraph 247 p. 442) states that “A binna marriage issometimes converted into a diga one, in which event it is subject toall the incidents of that form of marriage.” In his “Comment”, Modderexplains as follows:
“A daughter married in binna, quitting her parents’ house with herchildren to go and live in diga with her husband, before herparents’ death, forfeits for herself and her children the right toinherit any share of her father's estate, she having at the time abrother or binna married sister." (Sawers 3; Marshall 329;Armour, 59).
But if a daughter, who had been settled in binna was childless,and if after her father’s death, she quitted his house and wentaway and settled in diga, in that case she will have no permanentright to a portion of her father’s landed property, the whole whereof
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will then remain to her full brother or full brothers and their issue.
(Armour, 60)…."
Where a woman married in binna left the home of her father andsettled in diga in the home of her husband, she could, without aceremony, have converted her marriage into a diga marriage, andthereby deprived herself of her rights of paternal inheritance. InBertram, C.J.’s words in Mampitiya v. Wegodapela(9), (supra), (p.132):“What works the forfeiture is not the ceremony, but the severance”.One might have added, “Nor is it the direction in which the bridalprocession went after the ceremony that mattered.” As we have seen,physical absence is only evidence of “severance” from the family. Aswe have seen a diga marriage takes place if a woman goes to livewith a man as his wife and quits the parental roof to “enter intoanother family”. (Wood Renton, J. in Punchi Menika v. Appuhamy™,(supra)). It is “the severance of the daughter from the father’s familyand her entry into that of her husband” (De Sampayo, J. in PunchiMenike v. Appuhamy™ (supra), it is going out and “becoming as itwere a member of the husband’s family” (De Sampayo, J. inMenikhamy v. Appuhamy(13) (supra), it is the fact that a woman"ceased to be a member of her father’s family” (Lawrie, J. in Kalu v.Howwa Kiri™ (supra)), that makes such conduct a diga marriage.Neither registration nor a particular form of solemnization determinesthe character of a marriage, either at the time of contracting it orsubsequently. That however does not mean that the character of amarriage is determined by quitting or, “for whatever reason”,remaining in the mulgedera.
Marriage, being an important event in one’s life, was solemenized.There were various ceremonies that were performed. (E.g. seeSawers Ch. VII paragraphs 1 & 2 p. 30-31; Armour pp. 10-11; seealso M. B. Ariyapala, Society in Mediaeval Ceylon, (1956) at p. 355;Ralph Pieris, Sinhalese Social Organization, (1956), 197 et seq.; JohnD'Oyly, Sketch of the Kandyan Constitution, ed. L.J.B. Turner, 1929,82 et seq.). However, it was never in dispute that the contracting of amarriage did not depend on the performance of specific ceremonies.For instance Armour, at p. 11 states:
“These formalities and ceremonies are not however observed in
every case and are not always considered as necessary to
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constitute lawful wedlock. If the man and wife were equals inrespect of family, rank, and station in society, and if their parentscountenanced and sanctioned the alliance, their cohabitation willbe deemed a lawful union, and their issue will be acknowledgedas legitimate and therefore entitled to all the rights of legitimatechildren, although the usual wedding ceremonies had notpreceded the espousal.”
Modder: 248-249, writing in 1914, noted that the magul paha wereat that time rarely held and that the tendency to conform to westernideas was taking over. He refers to the exchanging of wedding ringsand the introduction of wedding cake as examples. More importantly,he observes that
“As the formalities and ceremonies known as the “Five feasts”could only be properly observed by the higher and more influentialclasses, they were not always considered necessary to constitutelawful wedlock. It was sufficient (1) if the man and woman were ofthe same caste; (2) if they were equal in respect of family, rank andstation in society; and (3) if the alliance was countenanced andsanctioned by their parents, or if dead, the parties were of thesame caste, and the man publicly acknowledged the woman to behis wedded wife. The cohabitation would then be a lawful union,and the union thereof entitled to all the rights of legitimatechildren.” (Armour 6; Sawers 33).
Hayley (at p. 175) states as follows:
The essentials of a legal marriage when carefully examinedappear to have been only three:
The parties must have had the connubium.
They must have not been within the prohibited degrees ofrelationship:
They must have cohabited with the intention of forming adefinite alliance:
It was also requisite:
That the consent of parents and relations should be given; and
In the case of chiefs of high rank, the consent of the King.
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With regard to the approval of parents and relations, Hayley(p. 175) points out that although it was ordinarily stated to have beenone of the essential conditions, it seems doubtful whether “itsabsence was itself sufficient to make the marriage null and void”. Ifthe marriage was not null and void, it would, as we shall see, havebeen a diga marriage.
Regardless of the nature of the solemnization, if what was requisiteaccording to custom to make a marriage had taken place, it waseither a binna marriage or a diga marriage. Whether a marriage wasa binna marriage or a diga marriage depended, not on anyceremony, but on whether the intention was that the woman was toremain in her family or to join the husband's family, Forfeituredepended on whether a marriage was a diga marriage, i.e whetherthe daughter was to belong to her husband’s family. And so, indeed,as Bertram, C.J. said, “Forfeiture may, therefore, arise irrespective ofany formal marriage ceremony”.
Undoubtedly the place of residence is an important indicator of thecharacter of a marriage. Ordinarily, in the absence of contraryevidence we ought to be entitled to presume that the common courseof usual events consistent with the ordinary practices of Kandyansociety followed. And so, a woman who after marriage lived in hermulgedera with her husband may be supposed to have been settledin binna. On the other hand, it would be expected that a womanmarried in diga would have been led away from her parental home. Itwas a symbolic manifestation of the departure of the woman to joinanother family and bear children who will belong to a different gens.Such a person would live in her husband’s home or upon theancestral property of her new family. However, if it was agreed thatthe marriage was diga marriage, it would be a diga marriage,irrespective of the fact that the bride took up residence in her father’shouse.
It cannot be accepted as a correct statement of the law that if adaughter, despite the fact that she was, and was said in hercertificate of marriage to have been, married in diga, “for whateverreason”, did not in fact leave the mulgedera, she was thereforemarried in binna. It was usual for a diga-married woman to be
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conducted to her husband’s home and for her to live with herhusband in his house. However, it does not follow that if a woman infact lived in the mulgedera “for whatever reason”, then the marriagewas a binna marriage. The determination of the character of amarriage is, perhaps unfortunately, but nevertheless, somewhat morecomplex than seeking a response to the simple question: "Where didshe live”?
MARRIAGE IN DIGA OF HER OWN ACCORD IS NEVERTHELESSA DIGA MARRIAGE SUBJECT TO THE INCIDENTS OF THAT FORMOF MARRIAGE.
Although Bertram, C.J. stated that his view of the law wasconfirmed by two circumstances, he also said (at p. 133) that “It isalso significant that if a daughter goes out in diga of her own accord,that is to say, without being given away by any member of her family,the forfeiture is none the less effected. (See Meera Saibo v.PunchiralaH3> and Ram Etana v. NekappuiAi)). Forfeiture may,therefore, arise irrespective of any formal marriage ceremony.”
Although generally marriages were arranged and their termsnegotiated, and usually took place with the consent of her parents, awoman was free to contract a diga marriage. But if she did so, itwould be subject to the usual rule of forfeiture. (See Modderparagraph 242 and Comment at page 432, and at pages 428 and432 citing, among other authorities, Armour:42 and Wood Renton andGrenier, J.J. in Ram Etana v. Nekappum and Hutchinson, C.J. andVan Langenberg, AJ in Meera Saibo v. Punchirala{AS>). Forfeiture takesplace, not because the woman acts without her parent’s approval ofher own accord, but because the woman by contracting a digamarriage had become a member of another family. That does notdirectly or indirectly support the conclusion that if a woman, for“whatever reason” remains in the mulgedera she has the rights of abinna-marrled daughter.
THE CLOSE CONNECTION WITH THE MULGEDERA THEORY
Reliance was placed by Bertram, C.J. in Mampitiya v.Wegodapelai9), (supra) at 133, and by learned counsel for the
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plaintiff-respondent in the matter before us, on certain decisionsrecognizing an exception to the general rule excluding a diga -married daughter from the intestate estate of her father if she hadkept up “a close connection" with her father’s house.
The “close connection” in the matter before us, apart from theresidence of the plaintiff-respondent, was based on the fact that sheremained in the mulgedera to look after her brother’s children. I shalldeal with her role as a guardian under the caption “Section 9 of theKandyan Law Declaration and Amendment Ordinance”. I wish to dealhere with the “close connection” theory in general.
In Dingiri Amma v. Ukku Amma{SSl, the plaintiff first lived with herhusband in her father’s house. The marriage was afterwardsregistered, and then both husband and wife lived at times in theplaintiff’s mulgedera and at times in the husband's house, until themulgedera was taken down. Then the plaintiff’s husband built a newhouse in the garden on which the mulgedera had stood, and the twoof them lived there. At the date of the trial, the plaintiff had lived in thenew house for twenty years. On these facts, Pereira, AJ held that, ifthe plaintiff had been married in diga at all (as to which there wassome doubt), she had reacquired the rights of a binna – marrieddaughter. Admittedly, if in the circumstances, it was the view of theCourt that by his conduct the father had shown that he had allowedhis daughter to settle on the family property in binna with herhusband, then it would have been correct to conclude, as the Courtdid, that the daughter had acquired all the rights of a binna – marrieddaughter.
However, as Hayley (p. 380) points out, Pereira, AJ based hisfinding to some extent on an extract from Perera’s Collection p. 173;and “another instance” in Marshall’s Judgments p. 329 to the effectthat a marriage in diga does not divest the wife of her inheritancewhere she has always kept up a connection with her father’s house.Perera’s Collection 173 and Marshall's Judgments 329, deal not withtwo but with one and the same case. Moreover, Perera, AJ probablydid not study the report of the relevant case in Marshall's Judgments,but confined himself to a reading of Perera’s Collection which quotesa passage from Morgan’s Digest incorrectly summarizing the relevant
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case, namely No. 590 Madewelatenne case 3rd May 1834 reportedin Marshall's Judgments'*". Since it is the misunderstanding of thatcase that was the source of the “close connection” theory, I shallreproduce the relevant report in Marshall in full. Under the caption“Kandy – Law of Inheritance", Marshall stated as follows:
“58. On this branch of the subject the following case fromMadewelatenne was decided in 1834. A father dying about 1814left six pellas of land, and on his deathbed gave a Talipot to hisson, the Defendant, telling him to support his mother to whom hegave two other Talipots, and who took the produce of one of thepellas till her death, which happened about 1826; from that timethe defendant, her son, took the produce of this pella as well as ofthe other five, the present action was brought for a share of theland by a daughter who had been married in Deega, but who itappeared had frequently resided at her father’s house, whereseveral of her children were born, it further appeared that she andher children were in a state of destitution. The Talipots given to themother were not to be found; – in his answer, the defendant statedwith great particularity the division made by his father of his lands,alleging all those which he now possessed had been bestowed onhim by his father, and that his sister, the plaintiff, had forfeited,those which had been given to her for non-performance ofGovernment services, but of this he offered no proof: TheAssessors in the original Court were of opinion that the plaintiff, inconsideration of his distressed circumstances, was entitled to thepella which his Mother had enjoyed, – the Judicial Agent, that shewas only entitled to support for her life, but on reference to theCourt of the Judicial Commissioners [this being before the NewCharter came into operation] that Court decreed, that she was notentitled to anything. On appeal to the S.C., it was decreed that theplaintiff be put into possession of the Pella possessed by hermother till her death; the S.C. adopted the opinion of theAssessors in the Court of Madewelletenne for the followingreasons:" Independently of the state of destitution in which itappears that the plaintiff now is, and which of itself would entitleher to some assistance from the estate of her deceased parents, itappears that, though she was married in Deega, she always keptup a close connection with her father’s house, in which indeed
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three of her children were born, another reason is, that thedefendant, although he undertook to assert in his answer that theplaintiff had received a share of the paternal lands which he evenspecifically described, yet has not shewn that she received anypart thereof; again it appears that the father, on his death bed,gave one Talipot to the defendant, and two others to his wife; whathas become of those two latter olas does not appear, but it is notimprobable that one of them may have been intended for theplaintiff, more especially considering the frequency of her visits tothe parental residence. “No. 590 Madewelatenne, 3rd May 1834.”
What Morgan said in his Digest (1862) at p. 15 was this:
"73. – A marriage in Deega does not divest the wife of herinheritance where she has always kept up a close connexion withthe father’s house; and this independently of the state of destitutionin which she may be, and which of itself would entitle her to someassistance from the estate of her deceased parents. – No. 690, D.C. Madewelatenne, (M).”
As Hayley (p. 380-382) points out: “… Now it is clear that thisjudgment does not justify the summary in Morgan's Digest to theeffect that, a marriage in diga does not divest the wife of herinheritance where she has always kept up a close connection withher father's house; and this independently of the state of destitution inwhich she may be, and which of itself would entitle her to someassistance from the estate of her deceased parents. Apart from thefact that the words used were obiter dicta, since the plaintiff in thecase was destitute, and that several other considerations admittedlycontributed to the decision, attention need only be drawn to the factthat the daughter was only awarded the one-sixth which her motherhad possessed and not the half share to which she would have beenentitled if her marriage did not “divest her of her interest.”
In discussing Dingin' Amma v. Ukku Ammal!S Lascelles, C.J. inAppuhamy v. Kiri Menikam, suggests that the decision of Pereira, J.was based on the fact that the woman had not merely been permittedto live in the mulgedera and ancestral property but that she had beengiven a binna settlement, which, as we have seen, entails more thanresidence. The Chief Justice stated (at p. 240) as follows:
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“Pereira, J. held, on the authority of D.C.Kurunegala, 19,107,reported in Modder 66, that, even if the plaintiff were married indiga, she had acquired binna rights. D.C. Kurunegala, 19,107,was decided on appeal on the ground that it was substantially acase where a diga married daughter returned with her husband toher house and was given a binna settlement."
If a binna settlement had been made, there is no difficulty. It is thennot a mere matter of residence or keeping up connections.D.C.Kurunegala 19,107 is reported in Part III Grenier at 115-116. Thedaughter had been married in diga but she had returned with herhusband to the family property, Mighamulawatte. She was givenexclusive possession of a piece of land therein and she built a houseon it and so, lived “in the same garden but in a different house” eversince. The District Judge held that in accordance with the principlesset out in Armour p. 67; Austin p. 22 and in D.C.Kandy 16679, thedaughter had not acquired binna rights. In appeal Cayley, J. set asidethe judgment. His Lordship said: “It appears to the Supreme Courtthat the case is substantially one in which a deega-married daughterreturns with her husband to the father’s house, and in which the fatherassigns to them a part of his house and puts them in possession of aspecific share of his lands. In cases of this kind a deega-marrieddaughter regains her binna rights. See Perera’s Armour p. 64.”
In Ukku v. PingoliB Wendt, J., with whom Hutchinson, C.J .concurred, held that a daughter, who married in diga after her father'sdeath retained her share by leaving behind in the mulgedera a childpreviously born to her there as mistress of her brother-in-law.
The decision appears to be based on Sawers’ Digest of theKandyan Law (Earle Modder’s edition 1921) Ch. I Section 9 p. 3 (Cf.Marshall’s Judgments at 329; Hayley Appendix I p. 6)which is asfollows;
“A daughter married in beena quitting her parents' house with herchildren to go and live in deega with her husband, before herparents' death, forfeits thereby for herself and her children a rightto inherit any share of her parents’ estate, (she having at the time abrother or a beena married sister), unless one of her children beleft in her parents' house.”
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Sawers refers only to a binna – married daughter, the position ofwhose children bears no analogy whatever to that of a d/gra-marrieddaughter and her children. (See Hayley at p. 372 and p. 382). Theobject of a binna marriage, as we have seen, is not to benefit thedaughter “but to raise up heirs to the proprietor by an artificialrelationship. It results from this that while the issue of the binnamarriage take a vested interest either in possession or reversion, themother’s interest is defeasible and will come to an end if shesubsequently leaves the family property and assumes a positionequivalent to that of a woman married in diga."(Hayley 372).
In Appuhamy v. Kiri Menikat,s the woman was married in digs andwent out to live with her husband at a place situated about two milesfrom her mulgedera. One of her children was left in the mulgederaand brought up by her grandmother. There was evidence that thewoman “kept up a constant and close connection" with themulgedera. Lascelles, C.J. and Wood Renton J. held that in thecircumstances the woman did not forfeit her rights. Lascelles, C.J .referred to the decision in Ukku v. Pingom and observed that thedecision in that case was based on the passage in Sawers and thatthe passage in Sawers dealt with the case of a woman married inbinna. Lascelles, C.J. proceeded on the basis that the Court did not“appear to have attached any importance to this distinction”, namely,whether the woman who left her child behind was married in binna ordiga. Indeed, it did not; but it seems almost certain that a differentconclusion would have been reached had the importance of thedistinction been brought to the notice of the Court.
Lascelles, C.J. then observed that the decision in Dingiri Amma v.UkkuAmmal25) (supra) was based on D.C.Kurunegala 19, 107 whichhe said was “substantially a case where a diga married daughterreturned with her husband to her father’s house and was given abinna settlement.
The emphasis is mine.
Lascelles, C.J. also considered Tikiri Kumarihami v. Loku Menikaand Others(47), The Chief Justice said that in that case “a passage
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from Solomons’ Manual of Kandyan Law is cited with approval, to theeffect that a binna married daughter who left her parents to marry indiga forfeited for herself and her children all right to inherit ‘unlessshe left one or more children at her parents’ house."
Neither the decision in Tikiri Kumarihami v. Loku Menika andOthers M7), nor the passage in Solomons provides any basis for theconclusion of Lascelles, C.J. that a woman married in diga did notforfeit her rights although she lived away from the mulgederaprovided that she left a child at the mulgedera who was brought upby the grandmother and kept up a “constant and close connection”with the mulgedera. The judgment of the Court delivered by Morgan,C.J. is reported as follows:
“The plaintiff was first married in deega to Hataraleeadela, but shewas called back to the mulgedera by her parents and lived therewith her child. She afterwards married Toradeniya and althoughthe evidence is conflicting in this respect, the Supreme Courtconcurs with the District Court that that was a marriage in beena.Her right therefore to the paternal inheritance revived. She wassubsequently, after the demise of both her associated fathers,married out in deega by her brothers to Dohegrinne, but she lefther youngest child of the beena marriage at the parents’ house. “Ifa daughter married in binna” says the late Mr. Solomons in hisexcellent manual of Kandyan Law, p. 17, “left her parents withchildren in order to contract a second marriage in deega sheforfeited for herself and children all right to inherit any portion ofher parents’ estate unless she left one or more of the children ofthe beena marriage at her parents house.”
In Tikiri Kumarihami v. Loku Menika and Others(47), (supra), thediga-married daughter had been recalled by her parents. Moreover,she had then been married in binna. Her rights to paternalinheritance revived. And when, after the death of her associatedfathers she was given away in diga by her brothers, she left heryoungest child in the mulgedera. As I have pointed out above, theposition of the children of a binna marriage bears no analogywhatever to that of a diga-married daughter or her children: The“same principle”, as Lascelles, C.J. supposed, is not equallyapplicable to the child of a binna married daughter and the child of adiga married daughter.
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Hayley at p. 378 sets out the relevant principles applicable when adaughter changes the character of her marriage. Later, at p. 383, hemakes the following explanation:
“As the binna-married daughter’s children are regarded asbelonging to their mother’s family, if her parents, on her departurein diga, keep one or more of them in the mulgedera, they tacitlyrecognize the continuance of such children’s position in the family.These considerations have no application to the issue of a diga -married daughter who belong to their father's house.’’
Both Lascelles, C.J. and Wood Renton, J. in Appuhamy v. TikiriMenika'*S) refer to Madawelatenne'*". Wood Renton, J. (p. 241)concludes that “an original marriage or a remarriage in binna seemsto be not a condition of the general rule laid down in theMadawalatenne case1*'1 but merely evidence of the closeness of theoriginal, or resumed, connection with the parents’ household, whichenables the married daughter’s rights of inheritance to be preserved.”As Hayley (p. 380) points out “A glance at the report shows that thejudgment [in Madawelletenne] did not purport to lay down any rule oflaw."
Hayley (p. 382) submitted that the hesitation expressed byLascelles, C.J. in coming to his decision in Appuhamy v. KiriMenika{ii) was “well founded, and that the law laid down in this andthe preceding cases is not supported by the authorities and iscontrary to the principles of Sinhalese Law.”
Although Siripaly v. Kirihamem, is not a case which relied on theso-called “close connection” principle, I should like to refer to it sincethe facts bear some resemblance to those in Tikiri Kumarihami v.Loku Menika and Others'*7' and because it underlines the fact that it isnot residence but the intention to restore a person’s rights thatmatters. The daughter in this case too had been married out in digabut was recalled during her father’s lifetime to the family house. Shesettled there in binna with her divorced husband’s brother. Thedocuments filed in the case proved “beyond all doubt” that the otherchildren of her father “recognised that she had regained her positionas one of [her father’s] heirs. After her father’s death, the woman
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again left the paternal house and lived with her second husband indigs. Wood Renton, J. (De Sampayo J. agreeing) held that in thecircumstances the daughter had regained her binna rights.
Siripaly v. Kirihamem was cited with approval in Dingiri Amma v.Ratnatilake<,7), (supra). In that case, Tambiah, J. said (at pp. 166-167)that in trying to establish that a daughter who had married in digahad re-acquired binna rights, “it must be shown that they were notonly received by [the father] and those who were entitled to theinheritance at the mulgedera but further that they acquiesced intheir reacquiring binna rights and agree to share theinheritance.”
The "close connection” theory was considered by Bertram, C.J. inBanda v. Anguralam. The Chief Justice underlined the decisiveimportance of the intentions of the concerned members of the familyas manifested by their conduct. As explained by Tennekoon, C.J. inGunasena and Others v. Ukkumenika and Others130', although insome cases, of which Appuhamy v. Kiri Menika"3', and PunchiMenika v. Appuhamy"3', are examples, “the question whether adaughter who had forfeited her rights to the paternal inheritance hadregained such rights was tested largely by reference to themaintenance of a connection with the mulgedera, yet in the case ofBanda v. Anguralam, (supra) Chief Justice Sir Anton Bertram heldthat the regaining of binna rights may be evidenced by material otherthan a connection with the mulgedera.
Although in Mampitiya v. Wegodapelam (supra), Bertram, C.J.suggested that it was residence in or absence from the mulgederathat was the decisive factor, in Banda v. Anguralam (supra), the ChiefJustice said that “there is nothing magic about the mulgedera.”
In Banda v. Angurala(49 (supra), Punchi Appuhamy had twodaughters and three sons. The two daughters were married in diga.One of the daughters went to live with her husband and at the time ofthe action to partition the properties of Punchi Appuhamy, manyyears after his death, she was still there. The matrimonial history ofthe second daughter was uncertain. Her original husband was saidto be dead, and she was said to have married twice subsequently.
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However, there was no question that at her original marriage she leftthe mulgedera and went to live in that of her husband. One of thethree brothers had died. The Chief Justice said (p. 277):
“A recital of these facts would seem to suggest conclusively thatthe partition must be conducted on the supposition that [thedaughters] had lost all rights of inheritance from their father,Punchi Appuhamy, unless it can be shown that in some way theyregained binna rights, and the question for determination iswhether they have done so. In all previous cases the question forthe recovery of binna rights has always appeared to turn uponsomething done in connection with the mulgedera, such as aresumption of residence there; the cultivation of the paternal landsheld in connection with it; the leaving of a child in the mulgedera orthe maintenance of a close connection with the mulgedera. But inthis case nothing of the sort is suggested. The claim to binnarights, however, in this case is based upon circumstances of avery significant and unequivocal character which I will proceed toexamine.”
After examining numerous deeds (pp. 277-278), Bertram C.J.found that, notwithstanding the diga marriages of the two daughters,their two surviving brothers over many years had executed a series ofdeeds, inter se, and with others, “clearly based upon the suppositionthat their sisters retained rights in the paternal inheritance”. HisLordship said (p. 278 in fin. – 280).
"The question now arises: What is the effect of this veryremarkable series of documents? The point at issue is theforfeiture of certain rights of inheritance. Any forfeiture may bewaived by those in whose benefit it takes place. It has beencustomary in considering whether a forfeiture of binna rights hasbeen waived to look at the matter from the point of view of theconnection of the daughter in question with the mulgedera. But inmy opinion there is nothing to show that this is the only test. To usea favourite phrase of the later Lord Bowen, “There is nothing magicabout the mulgedera. Where a forfeiture has taken place it is notthe connection with the mulgedera which restores the binna rights,it is the waiver of the forfeiture, of which the connection with the
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mulgedera is the evidence. As was said by Wood Renton C.J. inFernando v. Bandi S//val,4 the instances given in the text books onKandyan Law of the cases in which binna rights can be regainedare illustrations of a principle and not categories exhaustive inthemselves. The underlying principle is that the forfeiture by amarriage in diga of the diga married daughter to a share of theinheritance, may be set aside by her readmission into thefamily".
The real question is: Have the brothers waived the forfeiture oftheir sisters’ rights? It seems to me there can be only one answerto this question. On any other supposition the series of deedsabove recited would be absolutely unintelligible.
The learned Commissioner’s judgment is very concise. He simplysays that he is satisfied “from the long string of deeds producedthat the girls, though they were given out in diga, still held theseproperty rights in the paternal estate and those rights were longrecognised by the family. I therefore hold that they did not losetheir rights to the estate although their marriages were registeredas diga." For the reasons I have explained, I agree with theconclusion of the learned Commissioner and dismiss the appeal.
The emphasis is mine.
KANDYAN LAW OR THE PRINCIPLES OF ESTOPPEL?
Basnayake, J. in Appu Naide v. Heen Menika{W, (Gratiaen, J.agreeing) said that the rule applied by Bertram, C.J. in Banda v.Angura!am “has its origin in the Roman Law (Code 1.3.51) accordingto which everyone is at liberty to renounce any benefit to which he isentitled.” Basnayake, J. (at p. 65) proceeded to hold that hepreferred to apply the doctrine of “acquiescence" rather than the"associated doctrine of ’waiver’ applied by Sir Anton Bertram”.
Bertram, C.J. did not dispose of the matter before him on theground of "waiver": the disposal of the lands was regarded in thecircumstances as evidence of readmission into the family. Obviously,
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the fact that those in whose hands lie the decision of readmissionmay also be persons whose rights may be adversely affected byacquiescing in conduct that is consistent with readmission to thefamily. (See Hayley: 387). However, readmission to the family is notbased upon estoppel by conduct. As we have seen, the cases showthat residence in and possession of family lands and the taking oftheir produce may sometimes be regarded as insufficient evidence ofreadmission to the family and a consequent change of marital status.So also the sale, lease or mortgage of family lands may in somecases not be sufficient evidence of readmission. It may be due tosome other arrangement not connected with marital character. Theprinciples of Kandyan Law relating to the rights of succession ofdaughters married in diga or binna would have no relevance. Rightspertaining to the property might, however, be ascertained in suchcases by the application of principles such as those relating toestoppel by conduct or representation.
In the case before Basnayake, J. the land in question was ownedby one Appuhamy. Appuhamy had a son and two daughters. The twodaughters were married in diga. The District Judge had found thatthe daughters had reacquired their binna rights. No reasons for thisappear in the judgment. The facts, however, showed that the brotherand sisters had possessed the paternal land in common and equalshares in pursuance of an agreement between them. Deeds wereproduced to show that the brother and sisters had jointly sold someof the inherited lands to outsiders. Counsel contended that the factthat the brother had renounced his right to certain immovable propertybelonging to the family which he permitted them to treat as their ownalthough they were not entitled to do so, did not confer any rights onthe daughters. He submitted that, in any event, the fact that thebrother did not insist on his rights to ancestral lands did not entitle thedefendants to claim binna rights in them. Basnayake, J. said at p. 54:
There is no evidence that the defendants reacquired binna rights,nor does learned counsel for the respondents seriously contend thatthe defendants had acquired binna rights, but he relies on the long-standing family arrangement by which the brothers and sistersenjoyed the ancestral lands in equal shares…. In the instant case the
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deeds produced and the oral evidence … go to show that despitethe fact that the defendants were not entitled to a share of theancestral lands, including the land in dispute, they continued topossess and enjoy the subject-matter of the action and other landsas if they had not gone out in deega. I am unable to see anything inthe statements of Kandyan Law by Sawers and Armour which has adirect bearing on the case under consideration. The nearest case isfound in Armour where he discusses the right of a deega marriedsister who gets possession of the paternal lands. He says [Armour,Grammar of the Kandyan Law, edited by Perera p. 55]:
"If after the father’s death, the daughter was married out in deegaby her brother, or by their mother, the said daughter will therebylose her right to a share of the inheritance, and consequently herbrother will then become sole heir to the father's landed property.And although the said deega married sister did afterwards getpossession of a portion of her father’s lands, she will not have apermanent title of that portion, it will at her death revert to herbrother, or he being dead, to his issue – it being premised that thesaid parties were full brother and sister, and that the latter hadremained in her deega settlement until her death."
As there is no rule of Kandyan Law which is applicable to thepresent question, it must be decided according to general principlesof law. … I prefer to apply to this case the doctrine of acquiescencerather than the associated doctrine of waiver applied by Sir AntonBertram … The [daughters married in diga] with the knowledge oftheir brother … enjoyed two-thirds of the land as their own for overthirty years … His evidence and his conduct show that he was notunaware of his rights and that he assented to the defendant’s dealingwith the lands in the way they did. He cannot now be allowed, afterstanding by, with a knowledge of his rights, to deny the defendantsthe right to the land which they have enjoyed as their own for somany years.
In Gunasena and Others v. Ukkumenika and Othersm, thequestion that arose was whether three daughters who had beenmarried in diga before the death of their father had “reacquired
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binna rights". Besides the daughters, the father had four sons. Uponthe death of the father, the eldest son applied for Letters ofAdministration referring to all the children, including the daughters,and their mother as the heirs in law and next of kin. No objection wasmade to this description and Letters were granted, estate duty waspaid and final accounts were filed. However, when application wasmade for a judicial settlement of the accounts of the Administrator,the petitioner stated that the sole heirs were the four sons, that thewidow was entitled to a life interest in the acquired property and thatthe three daughters “having been married out in diga have forfeitedtheir rights of succession to their father’s estate.” The three daughtersfiled objections pleading, inter alia,
that the male children of the deceased had waived the benefitaccruing to them by reason of the diga marriages and had treatedthem as heirs to the estate of their deceased father notwithstandingthe diga marriages;
that on account of the rules of waiver and estoppel and by theirconduct the male children of the deceased had forfeited their claimsto the entire estate and that accordingly the three daughters wereentitled to share the said estate along with the male children.
In support of their objections, the daughters relied on (1) the factthat the administration proceedings had been conducted on thefooting of the averments in the application for Letters ofAdministration that the'daughters were their father’s heirs; (2) theexecution of three deeds of sale in which the title of the sons anddaughters was said to be “by right of paternal inheritance”; and (c)the admission of title of the three daughters in D.C. Kurunegala CaseNo. 2128/P: For, when a land that had belonged to their father wassought to be partitioned, all the children (and the widow) had filedone answer.
Tennekoon, C.J. (with Weeraratne and Sharvananda, J.J.agreeing) observed at p. 531 that according to the only witnesscalled, and through whom the marriage certificates were produced,the three sisters after marriage in diga resided in their husbands'homes and exercised no rights in respect of the mulgedera or any of
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their father’s properties other than those given to them uponmarriage. The Chief Justice said:
"No evidence whatsoever was called by the three sisters. In thisstate of the evidence one has to proceed on the basis that neitherbefore [the father’s] death nor thereafter do any of those actswhich are customarily regarded in Kandyan Law as evidence ofreadmission of a diga married daughter into the father’s family;there was for instance no evidence whatsoever to indicate that anyof the daughters maintained a close and constant connection withthe mulgedera, or left a child to be brought up at the mulgedera ormaintained an intimate relationship with the pater-familias, orpossessed any of the family lands. The case for the three …sisters was thus based only on ’waiver’ by the brothers of theforfeiture as evidenced in the documents referred to above or inthe alternative on ‘acquiescence’ by them in the sisters exercisingrights in the paternal property by the same documents."
After examining the evidence adduced, and stating (at p. 534)that a daughter married in diga can “in certain circumstances" havethe forfeited rights revested in such a daughter, Tennekoon, C.J.stated that, although in certain earlier cases the question whetherrights forfeited by a diga married daughter had been regained hadbeen “tested largely by reference to the maintenance of a connectionwith the mulgedera”, yet Bertram, C.J. in Banda v. Anguralam heldthat “the regaining of binna rights may be evidenced by materialother than connection with the mulgedera. After quoting theobservations of Bertram, C.J. reported at p. 278, Tennekoon, C.J. (atp. 535), observed that the case was followed by Basnayake, J. inAppu Naide v. Heen Menika(5,). He then quotes the observations ofBasnayake, J. in Appu Naide v. Heen Menika at p. 65 whereBasnayake, J. had expressed a preference to apply the doctrine of‘acquiescence’ rather than “the associated doctrine of ’waiver’applied by Sir Anton Bertram." Tennekoon, C.J. then quotes DeSampayo, J.’s statement in Punchi Menike v. Appuhamy<13) whereinreference is made to the “principle underlying the acquisition ofbinna rights”, namely that “the daughter is re-admitted into thefather’s family and restored to her natural rights of inheritance. This ofcourse is not a one-sided process; the father’s family must intend orat least recognize the result.”
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Tennekoon, C.J. (at pp. 535-536) then goes on to state as follows:
“Upon an examination of these and earlier authorities itwould appear that the re-acquisition of binna rights by adaughter who has gone out in diga can be established byproving the exercise by such diga married daughter of rights inthe mulgedera or in the paternal property as though therehad been no forfeiture, coupled with acquiescence on thepart of the father or he being dead, of the brothers in suchexercise of rights; the exercise of rights in the paternal propertywill include the execution by the diga married daughter ofdeeds of sale, lease or mortgage of paternal property with theknowledge and acquiescence of the father or the brothers andis not confined to proof of possession of those lands. From suchfacts a waiver of the forfeiture can be inferred and for such awaiver to be effective it is unnecessary to show that the waiver,or the acquiescence in the exercise by the diga marrieddaughter of rights in the paternal properties resulted in the latteraltering her position for worse. This is a part of the rule ofestoppel by conduct or representation and isno part of the Kandyan Law relating to waiver by the father orthe brothers of the forfeiture that occurs upon a diga marriageof rights to the paternal inheritance. From the documentsthat have been proved in this case, it is plain that the appellantshave without question – except belatedly – acquiescedin the sisters exercising rights of disposal over the paternalproperties. … Notwithstanding these deeds being set aside,the fact of their execution with the acquiescence of the brothersremains unaffected. … These two deeds together withdeed No. 352 … and the pleadings and consent decree inthe partition action D.C.Kurunegala Case No. 2128/P can onlybe explained on the basis that the sisters had re-aquiredbinna rights in the paternal properties. The proceedingsin the testamentary case also show that until the judicialsettlement of accounts the brothers all proceeded on the basisthat the sisters were heirs at law of [the father] not only inrespect of the movable properties but also of the immovableproperties.”
The emphasis is mine.
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SECTION 9 OF THE KANDYAN LAW DECLARATION ANDAMENDMENT ORDINANCE
In Gunasena and Others v. Ukkumenika and Others, (supra), theDistrict Judge had held that all three sisters were heirs of their fatherand were entitled to shares in his immovable properties. However,Tennekoon, CJ (Weeraratne and Sharavananda, JJ. agreeing), whileaffirming the District Judge’s decision in so far as the 2nd and 3rdrespondent sisters were concerned, allowed the appeal only in so faras it concerned the 4th respondent – the third sister – and held thatthe 4th respondent was not entitled to succeed to her deceasedfather’s immovable properties.The reason given for differentiatingbetween the 4th respondent sister (who was married on 24 October,1944) and her two sisters, the 2nd respondent (who had married on11th July, 1935) and the 3rd respondent (who had married on 14thOctober, 1938) was that the other two sisters had been marriedbefore 1st January, 1939, the date on which the Kandyan Law(Declaration and Amendment) Ordinance (Cap. 59) came into force;whereas the 4th respondent having married after the coming intooperation of the Kandyan Law (Declaration and Amendment)Ordinance (Cap. 59) cannot be admitted to binna rights in view ofsection 9 (1) of that Ordinance. That section, Tennekoon, C.J. said,provides, inter alia, that:
“No conduct after any marriage (whether binna or diga) of eitherparty to that marriage or any other person shall … cause or bedeemed to cause a person married in diga to have the rights ofsuccession of a person married in binna or a person married inbinna to have the rights of succession of a person married indiga."
In Alice Nona v. G. SugathapalaiSZ>, the matter did not relate to therights of succession but to the question of maintenance. Howeversection 9 (1) of the Kandyan Law Declaration and AmendmentOrdinance was applied. The applicant had contracted a binnamarriage. She claimed maintenance. The husband offered tomaintain her on condition of her living with him. The wife, however,refused on the ground that if she changed her residence and went tolive with the husband, her rights of inheritance might be affected. The
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magistrate held that this was not a sufficient reason within themeaning of section 4 of the Maintenance Ordinance for the wife torefuse to live with her husband. In appeal, Tennekoon, J. upheld thedecision of the magistrate. He said that “Under the law nowgoverning the rights of binna married daughters change of residencecannot affect the nature of the marriage or her rights to succession.See section 9(1) of the Kandyan Law Declaration and AmendmentAct … Admittedly the marriage was one contracted after 1938 andthe provisions of this section will accordingly apply …”
In Yaso Menika v. Biso MertikalS3 the 8th, 9th and 10threspondents claimed the right to succeed to the intestate estate oftheir father. T. S. Fernando, J. (Abeyesundere, J. agreeing) held that itappeared from the 8th respondent’s
“own evidence that she had married and moved away from herparent’s household and had not come back to reside therein. Herclaim to succeed to the deceased intestate’s property thereforefailed in any event. The learned District Judge, while holding thatthe 8th respondent was not entitled to succeed in her claim, heldthat the other two claimants were so entitled because, to use thelearned Judges own words, although they were given out in digathey have come back to the [parental home] and are entitled to ashare of the acquired property.
… The question arising in this case appears to have been decidedin the District Court without paying any regard to the relevantprovisions of the Kandyan Law Declaration and AmendmentOrdinance. Sections 9 and 15 of this Ordinance are not merelyrelevant but they also effectively bar [the 9th and 10th respondentsfrom succeeding to any rights in the acquired property of [theirfather]. In the case of … the 9th respondent, there is no disputethat she was herself married in diga in 1950. Her claim to succeedis therefore barred by section 9 (1) of the Ordinance referred toabove which enacts that "a marriage contracted after thecommencement of this Ordinance in binna or in diga shall be anduntil dissolved shall continue to be for the purposes of the lawgoverning the succession to the estates of deceased persons, abinna or diga marriage, as the case may be, and shall have full
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effect as such; and no change after such marriage in theresidence of either party to that marriage or of any other personshall convert or be deemed to convert a binna marriage into adiga marriage or a diga marriage into a binna marriage or causeor be deemed to cause a person married in diga to have the rightsof succession of a person married in binna, or a person married inbinna to have the rights of succession of a person married indiga."
In the case of … the 10th respondent, we have permitted theproduction before us by her of her birth certificate; an examinationof that document reveals that [the father] had not registeredhimself as her father, … Section 15 (c) of the Ordinance aforesaidprecludes [the 10th respondent] in these circumstances frommaintaining her claim to a share of the acquired property of [herfather].
The appeal has to be allowed and the order made by the DistrictCourt declaring the 9th and 10th respondents entitled to a share ofthe deceased intestate is accordingly set aside…
In Ranhotidewayaiage Rana v. Ranhotidewayalage Kiribindum, theplaintiff-respondent, Kiribindu, who was the younger sister of thedefendant-appellant, Rana, instituted an action for a declaration oftitle to a half share of a land called ‘Gallajjewatte’ and for damagesfor wrongful possession of her share by the defendant. The plaintiffaverred that the property in suit belonged to her father, Ukkuwa, andthough married in diga, she did not leave the mulgedera and thereby,when her father died intestate, she became entitled to a share of thepaternal land called 'Gallajjewatte’. The defendant-appellant filedanswer denying the right of the plaintiff to inherit from her father asshe had contracted a diga marriage in her father’s lifetime afterJanuary, 1939. The defendant had married and lived in themulgedera with his wife and children. The plaintiff and her parentstoo lived in that house. Shortly before the plaintiff got married, thedefendant’s wife died. The plaintiff married one Piyasena on 27 July,1939. The marriage certificate stated that the marriage was in diga.Piyasena died in 1946. Ukkuwa died in 1957. The plaintiff’s positionwas that although she married in diga, she remained in the
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mulgedera to look after the minor children of the defendant, herbrother Rana.
The learned District Judge held that on the evidence for theplaintiff, which he accepted, the plaintiff did not shift her residencethough the marriage was registered as a diga marriage. Theargument in appeal proceeded on the basis of this finding and thequestion for determination was this: As the plaintiff did not leave themulgedera notwithstanding her diga marriage, had she forfeited herright to the inheritance of her father’s estate?
The Supreme Court was called upon to interpret section 9 (1) ofthe Kandyan Law Declaration and Amendment Ordinance.Thamotheram, J. (Ismail, J. agreeing) proceeded to consider the lawbefore the enactment of section 9 (1).
Thamotheram, J. (at p. 79) concluded that
“The position before the amendment under consideration in thisregard was that it was possible to contradict a certificate ofregistration which stated that the marriage was in diga or in binnaby oral evidence … The effect of the amendment was that it wasno longer possible to prove the character of marriage by oralevidence.
In this respect the law as it was before was amended. Thecharacter of the marriage contracted remained so during marriageand after dissolution, it being a question of fact, the best and onlyevidence was the certificate of registration.”
With great respect, I am unable to agree that section 9 made themarriage certificate the best and only evidence of the character ofthe marriage. Had the marriage certificate been the “only” admissibleevidence, how was it possible for Thamotheram, J. to conclude that,although the certificate in the case before him stated the marriage tobe diga in character, the woman was entitled to a half share of herfather’s land called ‘Gallajjewatte’? That was possible because hetook the woman’s continuous residence in the mulgedera from thetime of the marriage and/or the fact that she had maintained a close
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connection with the mulgedera to be evidence of the fact that themarriage, notwithstanding what the certificate had said, was from itsinception a binna marriage or that it had been later converted into abinna marriage.
Section 9 provides as follows:
“(1) A marriage contracted after the commencement of thisOrdinance in binna or diga shall be and until dissolved shallcontinue to be, for all purposes of the law governing thesuccession to the estates of deceased persons, a binna or digamarriage, as the case may be, and shall have full effect assuch; and no change after any such marriage in the residenceof either party to that marriage and no conduct after any suchmarriage of either party or of any other person shall convert orbe deemed to convert a binna marriage into a diga marriage ora diga marriage into a binna marriage or cause or deemed tocause a person married in diga to have rights of succession ofa person married in binna, or a person married in binna to haverights of succession of a person married in diga.
Where after the commencement of this Ordinance a womanleaves the house of her parents and goes out in diga with aman, but does not contract with that man a marriage which isvalid according to law, she shall not by reason only of suchdeparture or going out forfeit or lose or be deemed to haveforfeited or to have lost any right of succession to which she isor was otherwise entitled."
Section 9 (1) applies to a case of a marriage contracted after thecommencement of the Ordinance. In terms of section 2, the date ofcommencement is 1st January, 1939. The marriage in the casebefore Thamotheram, J. and in the matter before us, took place on27th July, 1939, and so section 9 (1) is applicable.
Was the marriage in binna or diga? There is no definition of whatthese terms mean in the Ordinance, and therefore the matter must bedecided by reference to the principles of Kandyan Law. Since thecertificate of marriage states that the marriage was a diga marriage,
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as the Court did in Mampitiya v. Wegodapela<9> {supra), we shouldbegin with the conclusion that the marriage actually celebrated byKiribindu, the plaintiff-respondent, was a diga marriage.
Section 9 (1) provides that a binna or diga marriage shall be anduntil dissolved continue to be for all purposes of the law governing thesuccession to the estate of deceased persons a binna or digamarriage, as the case may be. The relevant period commences fromthe time the parties began to treat themselves as married persons andto live as married persons. (Kalu v. Howwa Kiril'2) (supra)-,Punchimahatmaya v. Charlism (supra)-, Kotmale v. Durayam (supra)-,Ukku v. Kirihonda(20) (supra)-, Dingirihamy v. Mudalihamy et ai{2')(supra)-, Sinno v. Appuhamyi5A): Dissanayake v. Punchi Menike{2Z)(supra) and Tennekoon Mudiyanselage Ukku Amma and Others v.Vidanagamage Beeta Nona™(supra)). In the case before us therelevant date was the same as the date of the registration of themarriage, namely 27th July, 1939. It was not a case like Ukku v.Kirihonda1201 or Dingirihamy v. Mudalihamy(2,) or Sinno v. Appuhamy(54),Dissanayake v. Punchi Menike<22) or Tennekoon Mudiyanselage UkkuAmma and Others v. Vidanagamage Beeta Nonal23), where theregistration took place a long time after the marriage, by which date,the character of the marriage may have been altered. In thecircumstances what Kiribindu and her husband and their fatherintended at the time of marriage was that which they told the registrarthey were doing, namely, contracting a diga marriage. (Cf. theobservations of Moncrief, ACJ in Ukku v. Kirihondatza) quoted above).The certificate of marriage was in terms of section 39 of OrdinanceNo. 3 of 1870 and section 28 of the Kandyan Marriage and DivorceAct, No. 44 of 1952, the "best evidence” of the character of themarriage in the technical sense in which that phrase has been used indealing with matters of the kind before us.
The “best evidence" principle was introduced by section 39 ofOrdinance No. 3 of 1870. In many instances, the registration tookplace after the traditional ceremonies had taken place. Sometimesthis happened after many years. The provision was intended toexclude oral testimony of what took place. Moreover, as thesensational “Kurunegala Polyandry Case” (Regina v. Opalangu<55))
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showed, such a rule was desirable if misinterpretation of what tookplace at the registry was to be avoided.
Section 28 of the Kandyan Marriage and Divorce Act, No. 44 of1952 re-enacted the provisions of section 39 of the 1870 Ordinance.
The rule has continued to serve the useful purposes for which itwas intended. E.g. see Ukku v. Kirihondam Ram Etana v.Nekappum Dingirihamy v. Mudalihamy<2,); Sinno v, AppuhamymKiri Banda v. S/7va<56); Dullewe v. Dullewe(S7) See also Dissanayake v.Punchi Menikd22) and Dingiri Amma v. Ratnatillaka(,7), Mampitiya v.Wegodapela<9>; Seneviratne v. Halangodam Chelliah v. KuttapitiyaTea and Rubber Co.(8); H. P. James v. Medduma KumarihamyiS9)Tennekoon Mudiyanselage Ukku Amma and Others v. VidanagamageBeeta NonalS3>.
Kiribindu's case is that she did not forfeit her rights because shenever left the mulgedera. As we have seen, residence is onlyevidence of the character of a marriage. It is not conclusiveevidence. Mr. Marapana was right in pointing out that “none of thesources on Kandyan Law classify married women as those who livedin the mulgedera as opposed to those who left the mulgedera inreferring to their rights to the paternal inheritance." In the matterbefore us, Rana’s wife had died shortly before Kiribindu’s marriage.Therefore, although she was married in diga, she remained in herfather's house to look after her brother's motherless children. Nodoubt she rendered a most valuable and praiseworthy service; butthat alone would not convert her diga marriage into a binna marriage.
The following illustration given by Armour (pp. 61-62) clarifies theposition of a daughter like Kiribindu, who was married in diga, butwho resided in the mulgedera to play the role of a guardian to minorchildren at the mulgedera: She does not thereby acquire the rights ofa daughter married in binna:
“The father having died intestate, leaving issue by the same wife,an infant son, an infant daughter, and a daughter married out indiga, and also a grand-daughter, the child of a predeceaseddaughter, (by the same wife), who was married out in diga, all his
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lands will devolve to the infant daughter and to the son. Shouldthe surviving diga daughter then return to the deceasedfather’s house, and in the capacity of guardian to her infantbrother and sister, manage the affairs of their father’s estate,and if she then gave away her younger sister in diga marriage,the said younger sister will thereby lose her right to a share ofthe said lands, and the brother will then become soleproprietor thereof, but the elder sister, who had returnedhome, although she acted as guardian to her brother andyounger sister, and had managed the estate, will not havethereby acquired the rights of a binna daughter…”
The emphasis is mine.
The matter before us was not a case in which a af/'ga-marrieddaughter returned during her father’s lifetime and was allowed byher father, notwithstanding arrangements regarding her dowry, tosettle on the father’s property in binna with her former husband or anew husband; in which case, as we have seen, she would haveacquired all the rights of a binna-married daughter. The fatherprobably never intended her to settle in his house in binna. At thetime of the marriage, it was known that Kiribindu would remain in themulgedera, not because a binna settlement was intended, but to lookafter Rana’s children. If residence in the mulgedera was because abinna settlement was intended, why did her father give her away indiga unless he clearly intended that and no other status for hisdaughter, although he knew that the daughter would continue to livein the mulgedera? There was nothing to show that he ever changedhis mind. Hayley (p. 372) points out that a binna marriage was notcontracted for the benefit of the daughter, but to raise up heirs to theproprietor by an artificial relationship. If he was right in hisexplanation, the need for a binna marriage did not exist in Ukkuwa'sfamily, for he had a son, Rana, and Rana had three children at thetime of Kiribindu’s marriage.
As we have seen, whether a marriage was to be in diga or binnawould ordinarily have been determined during negotiations whichpreceded the marriage. In my view, by reason of a familyarrangement agreed upon at the time of the marriage, of which abinna settlement was no part, Kiribindu was to remain in the
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mulgedera to look after Rana’s children. For her part, she and herhusband had a place of residence and support. In addition, she hadthe good fortune to remain at home, despite the fact that she hadbeen married in diga and would ordinarily, according to custom, havehad to go away. Sawers (Chapter I, paragraph 14, p. 5), after statingthat “Daughters must accept the husband chosen for them by theirparents, or in the event of their parents being dead, by their brothers,and must go out in diga, adds the following “Note": “Proverb: Womenare born to three miseries or great evils:- 1st, to quit the place of theirbirth; 2nd, to the pains of childbearing; and 3rd, to be undersubjection to their husbands."
There was nothing, except for the mere fact of residence, tosuggest that the daughter was allowed to settle in binna. On the otherhand, there was the contemporaneous recording by the Registrar ofMarriages of the intention of the parties that the marriage was a digamarriage despite the fact that it was known that the residence of thedaughter and her husband would be at the mulgedera. Chelliah v.Kuttapitiya Tea and Rubber Co.(8) {supra), was different. In that case,the daughter’s marriage was registered as a diga marriage; howevershe never left her father's home and lived there continuously until herdeath with her husband. Three children were born to this marriage.All of them were born in the mulgedera. The whole family livedtogether and the daughter and her husband possessed the fieldsand gardens and lands belonging to her father. The lands in disputewere cultivated by the husband, for which he was given a share ofthe produce. In the circumstances, it was argued that if the daughterdid by the mere fact of having contracted a marriage declared to bein diga sustain a forfeiture she re-acquired those rights and was fullyrevested with them. Garvin, SPJ (Jayewardene, J .agreeing) held atp. 96 that “the conclusion was inevitable that [the daughter] was fullyvested with the rights of inheritance and did in fact inherit her father’sproperty…"
In Mampitiya v. Wegodapela™ {supra) the woman was given away indiga after her father’s death by her brother. However, the evidencesatisfied the Court that the family had intended a binna connection.Although Bertram, C.J. did state that if for “whatever reason" adaughter married in diga who remained in the mulgedera retained herbinna status, as we have seen, the remarks were obiter, for there were
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other considerations that admittedly contributed to the decision.Moreover, as we have seen, the authorities do not support such a view.
In the matter before us the marriage of Kiribindu, the plaintiff-respondent, was a marriage in diga, and in terms of section 9 (1) ofthe Kandyan Law Declaration and Amendment Ordinance, for thepurpose of the law governing her succession to the estate of herdeceased father, Ukkuwa, a diga marriage and must have full effectas such. The effect of her diga marriage was that she lost her right ofsuccession to the estate of her father. Therefore she had no right, titleor interest in the lands which she seeks to partition, for those were notlands she could have inherited from her father.
Mr. Goonesekera submitted that section 9 (1) had no applicabilityin the determination of the matter before us. He argued that thescope of section 9 (1) was limited to the determination of rightsflowing from the form of a marriage, as for instance in thedetermination of the rights of a diga married widower to the estate ofhis deceased wife or child, or in deciding upon the right ofsuccession of a woman to the estate of her deceased husband. It didnot, he said, apply to rights of succession that did not depend onmarriage. “A long line of cases”, he said, had established that it is thedeparture from the parental house that results in the loss of rights ofinheritance, “and not the form of the marriage.” Consequently, “thereis nothing in section 9 (1) to alter a diga married daughter’s right topaternal inheritance if in fact, either there was no severance from themulgedera or there was a departure and a subsequent return to themulgedera, for whatever reason, and restoration to the family unit.This interpretation,” he submitted, was “strengthened by section 9 (2)which he said recognizes the loss of rights by mere departure,without marriage, leaving it open for the reacquisition of rights onreturn."
The rights of succession of a Kandyan daughter to the intestateestate of her father has always depended on whether she wasmarried or unmarried. If she was married, those rights depended onwhether she was married in binna or diga. In certain cases, wherethe woman had left her parental home, she lost her rights, notbecause she left her parent's home, but because she did so in orderto, and did, contract a diga marriage. I have discussed this matter
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above and pointed out that leaving the home, for example to seekemployment, or even to cohabit with a man, in circumstances inwhich a daughter could not be held to have contracted a digamarriage, did not cause a forfeiture because there was no marriagealthough there was a separation from the parental household. Section9 (2) was not a recognition of a loss of a daughter’s rights uponleaving her home, but an attempt to avoid what, the Kandyan LawCommission in its report at paragraph 169, described as the “curiousresults” flowing from the decisions in cases like Kalu v. Howwa Kirioz>,(supra), Punchimahatmaya v. Charlis{m (supra), and Kotmale v.DurayaW). The Court had in those cases correctly, according to theprinciples of Kandyan Law, decided that a daughter married in diga,albeit married according to the customs of the land, forfeits herrights, even though the marriage was not registered, and thereforeinvalid in law. Section 9 (2) sought by legislative intervention toeliminate the anomalies resulting from the application of the KandyanLaw in the context of the law making registration the basis of a validmarriage. It sought so to do by making the principle of forfeitureoperative only if a marriage was valid in law by registration and notmerely valid on account of conformity with customary law.
The “long line” of decisions referred to by Mr. Goonesekere, as wehave seen, were concerned with the test of "severance". That testhas been concerned with ascertaining whether, upon marriage, thewoman became a part of the husband’s family, or whether shebelonged to her father's family. Where she became a part of herhusband’s family, she was said to be a person married in diga. Whenshe was a member of her father’s family, she was said to be marriedin binna. Customarily, a woman, who was married in diga left herparental home and went to live with her husband, whereas a womanmarried in binna usually lived with her parents in her father's house oron his properties. There were exceptions. However there was norequirement in law making it a condition of a binna marriage that thewoman shall live in her parental home. Nor was there a requirementthat a woman married in diga must live in her husband’s house. If in aparticular instance, the normal course of conduct was not followed,the circumstances must be examined to ascertain why that was thecase. If it is claimed that a woman who contracted a marriage of onecharacter had the character of her marriage altered, it must be
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ascertained by an examination of the evidence in the case, including,but not limited to, the place of residence, whether that was in fact thecase. Where the daughter never left the mulgedera, was shepermitted to do so because it was intended that she should continueto be a member of her father’s family? Upon the return of a daughtermarried in diga was she, as Mr. Goonesekere put it, “restored to thefamily unit”, or was she merely permitted for other reasons, such asthe exercise of her right to shelter and support in the event ofdestitution, or on account of some family arrangement, without abinna connection being intended? The submission that the mere factof remaining in the mulgedera for “whatever reason”, gives a digamarried daughter the rights appropriate to a binna married daughter,notwithstanding the obiter dictum of Bertram, C.J. to that effect inMampitiya v. Wegodapela {supra) at p. 132 – there was much morethan residence in that case – is untenable in the light of a carefulconsideration of the authorities.
Mr. Goonesekere submitted that “Forfeiture was not an incident ofmarriage, but quitting the paternal roof. So that if the connection withthe mulgedera was re-established in full, the logic of Kandyan familyrelations required that the right of inheritance was regained.”Forfeiture was an incident of a diga marriage, because the daughteris given her dowry and sent off to join another family and to bearchildren who will belong to a different gens. When she ceases tobelong to her father’s family, she ceases to have rights of inheritanceto her father. Those rights belong only to the members of the father’sfamily. If the daughter was recalled or returned, her marriage may beconverted into a binna marriage with full effect in respect ofinheritance, if it is clearly established that a binna connection wasintended, i.e. if she was intended to become a part of the father’sfamily, or as Mr. Goonesekere said, “if the connection with themulgedera was re-established in full.”
In the matter before us, the plaintiff-respondent’s husband,Piyasena, died in 1946. What was the effect of that? Ukkuwa, herfather, died in 1957. In Ranhetidewayalage Rana v.Ranhetidewayalage Kiribindu™, Thamotheram and Ismail, JJ. heldthat, section 9 (1) of the Kandyan Law Declaration and AmendmentOrdinance provided that so long as a marriage subsists no change inthe character of the marriage can be established by proof of change
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of residence or conduct of either party to the marriage or any otherperson. However, after the dissolution of the marriage, “a change canalter the situation. A bride can regain her lost rights after the marriageis no more …" (per Thamotheram, J. at p. 80). “After dissolution ofmarriage the diga married woman can regain her lost rights bychange of residence, etc”, (per Thamotharam, J. at p. 91).
In that case, Weeraratne, J. in a dissenting judgment, held that thecharacter of the marriage remains the' same before and afterdissolution. With that position, I am in complete agreement. Kiribindudid not upon the dissolution of her marriage revert to the position ofan unmarried daughter. There was obviously no marriage; but herstatus as one who had been married in diga continued.Consequently, as we have seen (e.g. in considering Kalu v. Howwa.Kiri('2) (supra)] Punchimahatmaya v. Chariism (supra), Kotmale v.Duraya<m (supra), the Ambaliyadde casei3A) (supra), Jud. Com.Kandy 5137 (supra)] Armour 65-66; Nitiniganduwa 62, 65, 66.), adiga-married daughter who returned to her father’s house after thedissolution of her marriage was not entitled to a share of her father’sintestate estate. Hayley (p. 384) states as follows on the basis ofvarious authorities he cites:
“The frequency of divorce, and the simplicity with which marriagesare dissolved, make it important to consider the position of adaughter who returns from her diga-husband’s house. In such acase, she does not ordinarily recover any right to inherit, whethershe returns before or after her father's death. If, however, with theconsent of her parents, she marries again in binna, then herprevious marriage is disregarded and the full rights of a binna-married daughter accrue to her.”
With great respect, I am unable to agree with Weeraratne, J.’sopinion that section 9 (1) has the effect of precluding a change ofstatus even after the dissolution of the marriage. In the most obviouscase, her father could, after the dissolution of the marriage, havearranged a binna marriage for the daughter and reinstated her in thefamily, as for instance, as we have seen the father did in the case ofone of his three daughters in Dingiri Amma v. Ratnatilakal'7) (supra).See also D.C.Kandy 18457, (1894) Austin 96; Babanissa v.
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Kaluhamim. We have also seen that in Siripaly v. Kirihamem {supra)the daughter who was married in diga was, after the dissolution ofher marriage during her father’s lifetime, recalled to the family houseand settled in binna with her divorced husband’s brother.Consequently, it was held, her binna rights had "revived”.
The right to contract another marriage after the dissolution of aformer marriage is an important right. Such a marriage would have tobe a binna or diga marriage if it was a Kandyan marriage. Section 9
did not expressly or by implication provide that the intention of theparties to the earlier marriage determined the character of thesecond marriage. The section was formulated to avoid such asituation. There was also a preservation of the exercise of rightsrelating to the family in certain circumstances. The Niti Nighanduwa(Translated by Le Mesurier and Panabokke, (1979)) p. 27 states thata man who has an only daughter who is divorced and given incharge of her mother, has a right to insist on her being married inbinna in his presence “so as to preserve his family name andanscestral lands”.(See Hayley p. 168 footnote (x)). Alternatively, thefather could, after the dissolution of a marriage, do certain things tomanifest his intention of a binna settlement. The legislature had goodreasons for not paying heed to the view of the Kandyan LawCommission (paragraph 174) that “in no circumstances can amarriage once registered as in diga be altered into a binna one andvice versa" and for ignoring its recommendation (at p. 40) that “Amarriage registered as a diga marriage should always be deemed tobe a diga marriage, and a marriage registered as a binna marriageshould always be deemed to be a binna marriage.” The legislature,no doubt, recognized the desirability of reducing litigation, which thecommissioners were confident would be achieved by the adoption oftheir recommendations which they said would “settle several vexedquestions and close up for all time a fertile source of litigation”(paragraph 175); but they did so by limiting the proof of change ofmarital character by evidence of change of residence or conduct ofthe parties to the marriage or any other person, to the periodcommencing with the marriage until its dissolution; and not bylegislating that if a woman had been married in diga or binna, thenfor all time, under whatsoever circumstances, and for the purposes ofdetermining her rights of succession, she would remain a diga orbinna married woman, as the case may be.
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In the case before us, if her father’s intention had been thatKiribindu's marriage should be in binna, and he had made a mistakein agreeing that the marriage to Piyasena should be in diga, upon thedissolution of her marriage on the death of her husband, Piyasena, hecould have arranged a binna marriage for her. He did not do so. Nordid he do anything after Piyasena’s death to manifest his intention thata binna settlement was ever intended. He had contemporaneouslywith the celebration of the marriage agreed that it should be a digamarriage in which the daughter would for certain purposes, includingher rights of succession, belong to her husband’s family, although shewould remain at home to look after her brother’s children, since theirmother had died. After the dissolution of the marriage brought aboutby Piyasena’s death, he was content to let her status remain as it was.He did not do anything from which it could be inferred that he hadreadmitted her into his family. If we were to delve further, and acceptHayley’s explanation (cf. also the passage cited above fromChamber’s Encyclopaedia and the citation I have made from the NitiNighanduwa p. 27; and Modder’s statement quoted above that abinna marriage occurs only in cases in which "there are few or nosons") of a binna marriage, an explanation that helps to make senseof many a principle relating to the law of succession, there was noneed for a binna marriage, for Ukkuwa had no problem about raisingheirs, or preserving his family name and anscestral lands.
For the reasons stated in my judgment, I hold that Ranhoti-dewayalage Kiribindu, the plaintiff-respondent, had no right, title orinterest in the lands sought to be partitioned. The appeal is allowedand the judgments of both courts below are set aside. I make orderdismissing the plaintiff's action. The parties will bear their own costsof this Court and the Courts below.
FERNANDO, J. -1 agree.
WIJETUNGA, J.I have had the advantage of reading in draft, the judgments of mybrothers Amerasinghe, Dheeraratne and Wadugodapitiya. I
I am in respectful agreement with the conclusions and the ordersproposed by my brothers Amerasinghe and Dheeraratne.
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DHEERARATNE, J.IntroductionPlaintiff-respondent (Kiribindu) filed this action to partition 6 landsdescribed in the plaint. There was no dispute that Ukkuwa,Kiribindu’s father was at one time the owner of all those lands. Theonly contest in the case arose regarding the devolution of theinterests of Ukkuwa, who died in 1957, admittedly leaving as hischildren daughter Kiribindu and son Rana. Rana died in 1971 leavingas his heirs his children the 1st defendant-appellant and 3rd and 4thdefendant-respondents. Kiribindu was married to one Piyasena on27.7.1939 and according to the relevant entry in the certificate ofmarriage it was in diga. Ordinarily, under Kandyan Law, Kiribindu’smarriage in diga would result in a forfeiture of her right to succeed tothe paternal inheritance. It appears that shortly before Kiribindu gotmarried, her brother Rana's wife died leaving three minor children(present 1st defendant-appellant and 4th and 6th defendant-respondents). Kiribindu’s husband Piyasena died in 1946. Kiribinduclaimed half share of the lands sought to be partitioned on the basisthat she is entitled to half share of her paternal inheritance. Thecontesting defendants prayed for dismissal of Kiribindu’s action onthe basis that she had no interests in the lands inasmuch as she hadforfeited her rights to paternal inheritance by her contracting a digamarriage. However, Kiribindu’s claim was based on two alternativehypotheses viz.
Primarily because of need to look after her brother Rana’smotherless minor children, she never left the mulgedara; andseverance of the connection with the mulgedara being thepredominent idea of a Diga marriage, she never forfeited butpreserved her rights to the paternal inheritance.
Even if she lost her right to succeed to her paternal inheritanceby virtue of her diga marriage, she reacquired that right during herfather’s lifetime, by her continuous residence in the mulgedara afterthe death of her husband in 1946.
Kiribindu also claimed that the decision in the earlier action DCKegalle L/16312 between her and her brother Rana for declaration of
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title in respect of another land, relating to the devolution of her fatherUkkuwa’s interests, is res judicata between the parties. That casewent up in appeal and the decision of the Supreme Court is reportedas Ranhetidewayalage Rana v. Ranhetidewayalage Kiribinduw. Inthat case Thamotheram, J. and Ismail, J. with Weeraratne, J.dissenting, inter alia held on a construction of section 9 of theKandyan Law Declaration and Amendment Ordinance No. 39 of 1938that after dissolution of a marriage of a Diga married woman, shecan reacquire her lost right to succeed to her paternal inheritance bychange of her residence to the mulgedara.
In the present action learned District Judge held with Kiribindu onthe question of res judicata and ordered interlocutory decree ofpartition be entered. The Court of Appeal affirmed that judgment andthe 1st defendant (a son of Rana) has now appealed to this Court.Special leave was granted by this Court on the question ofapplicability of subsection 9(1) of the Kandyan Law Declaration andAmendment Ordinance No. 39 of 1938 in the light of the earlierSupreme Court decision and whether a plea of res judicata onaccount of the earlier decision bars the present action. In terms ofArticle 132 (3) of the Constitution, His Lordship the Chief Justicebeing of opinion that the question on which leave was granted is oneof general and public importance, decided that this appeal be heardby a bench of five judges of this Court.
The Plea of Res JudicataThe plea of res judicata was upheld by the original Court mainlybecause it felt it was bound by the earlier decision of the SupremeCourt and had no authority to review the correctness of that decision.The doctrine of estoppel per rem judicatam is based on the maximsinterest rei publicae ut sit fines litium (it is in the public interest thatthere should be an end to litigation) and nemo debet bis vexari prouna et eadem causa (no man should be vexed twice over the samecause). The doctrine of precedent does not depend on those maximsbut depends simply upon the desirability of certainty and uniformityof the law. (For the contrast see Waring, Westminster Bank Ltd. v.Burton Butler and Othersm.)
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The earlier action was between Kiribindu and Rana; Rana'schildren who are defendants in the present action being those whohave succeeded to the rights of Rana are his privies. There is noquestion therefore about the sameness of the parties in both actions.Learned counsel for Kiribindu contends that although the subjectmatter of the two actions are different, the grounds of the plaint andthe media through which relief is claimed are identical; there is a finaldecision on the question whether Kiribindu did acquire binna rightsor not; therefore the earlier action is res judicata between the partieson the basis of issue estoppel. Learned counsel relied on thedecisions of Dingiri Menika v. Punchi Mahatmayam, Appuhamy v.Punchihamy(6Z>, Morals v. Victoria™ and Krishnan v. Thurairajahm.Learned counsel for the appellant on the other hand contended thatan erroneous decision on a pure question of law even though resjudicata between the parties and their privies on the same cause ofaction, it is not res judicata between the same parties in respect of adifferent cause of action or where different relief is sought. The earlieraction between the parties was a case of declaration of title to a landcalled Gallajjewatte; in the present action the relief claimed and thesubject-matter are different, in that Kiribindu seeks to partition someother lands. Learned counsel for the appellant relied on the decisionsin Katiritamby v. Parupathi Pillai™, Guneratne v. Punchibartdam and
K.Subramaniam v. Kumaraswamy™. In the last of those casesSansoni J. at page 131 explained the legal position as follows:-
“The question of law involved, and I should add that is a purequestion of law and nothing else, is the correct interpretation of certainprovisions of the Jaffna Matrimonial Rights and Inheritance Ordinance(chapter 48) and Ordinance No. 58 of 1947, by which it wasamended. The 1st defendant by deed acquired several allotments ofland from time to time during the subsistence of his marriage with oneRasammah. She has died leaving her husband (the 1st defendant)and four children (8th to 11th defendants). The judgment againstwhich it is sought to appeal decided the rights of 1st, 8th, 9th, 10thand 11th defendants in respect of one land so acquired.
Mr. Chelvanayakam submits that this judgment is res judicata asregards the rights of these parties in respect of all other lands whichwere similarly acquired by the 1st defendant; it is necessary to havethe decision considered by the Privy Council. If this submission were
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correct it would be a strong reason for allowing this application. ButMr. Renganathan challenges its correctness and he relies on thejudgment in Katiritamby v. Parupathi Pillaim. It was there decidedthat an erroneous decision on a pure question of law will operate asres judicata quoad the subject-matter of the suit in which it is given,and no further. Unlike a decision on a question of fact or of mixed lawand fact, an erroneous decision on the law does not prevent theCourt from deciding the same question arising between the sameparties in a subsequent suit according to law. Caspersz on Estoppelwas cited as an authority by Garwin AJ. in his judgment (de SampayoJ. agreeing). This judgment was followed in Guneratne v. PunchiBandam by Schneider J., (Maartensz AJ. agreeing). In view of thesetwo decisions of this Court I do not consider it necessary to discussthe other authorities cited in the course of the argument. Assuming,then, that the other lands which were purchased upon other deedsby the 1st defendant during the subsistence of his marriage withRasammah were purchased under circumstances which were exactlysimilar to those under which the'land now in dispute was purchased,the rights of the parties under those deeds and the manner ofdevolution of those lands upon the death of Rasammah raise purequestions of law to which the rule already enunciated would apply. Itshould therefore, be open to the 1st defendant, if he is so advised, tocanvass the correctness of the judgment already given when thosequestions arise for decision”.
We have not been convinced why we should depart from the dictaof Sansoni J. and that leaves it open to us to consider whether theearlier decision is erroneous in law or not.
Registration Conferring Validity of MarriageThe forms of marriage recognized by Kandyan Law are diga andbinna. “In the former, which is the usual type of alliance in apatriarchal system, the husband conducts his bride to his own houseor that of his parents, and she becomes, so long as the marriagesubsists, a member of his family. The latter … is perhaps the olderform. In modern times it is usually entered into only when the bride isan heiress. The husband is brought to the house of the wife or herrelations, the essential factor being his residence on the propertybelonging to the wife’s family, not necessarily that of her father. He
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continues throughout the alliance in a subordinate and somewhathumiliating position” (Hayley 193). What were the essentials of aKandyan marriage in early times? The vagueness of the ideasregarding marriage is expressed by Hayley at page 174 as follows;“The marriage laws present us at the outset with a curious anomaly.Although the status of the wife is one of great importance, conferringon her substantial rights in her husband’s property after his decease,and in spite of the fact that persons of good caste and positionsdisplay a keen concern in the prevention of any kind of mesalliance,whereby the fair name of the family may be degraded, there wasnevertheless, prior to recent legislation on the subject, a remarkablevagueness of ideas with regard to the inception, maintenance, anddissolution of matrimonial alliances. Wedding ceremonies wereelaborate and among persons of wealth and position, costly, but themost elaborate ceremony guaranteed no more permanance to theunion, than mere cohabitation. The poorer classes habituallydispensed with any ceremony, a practice which appears to haveincreased in more modern times, especially where the bride has beenmarried before, which is frequently the case, for Knox says, “Bothwomen and men do commonly wed four or five times before they cansettle themselves to their contention.” Hayley continues;
“The essentials of a legal marriage when carefully examinedappear to have been only three:
The parties must have had connubium-,
They must not have been within the prohibited degrees ofrelationship;
They must have cohabited with the intention of forming a definitealliance.
It was also requisite,
That the consent of the parents and relations should be given; and
In the case of chiefs of high rank, the consent of the king.
The approval of parents and relations is ordinarily stated to havebeen one of the essential conditions, but it seems doubtful, forreasons stated below, whether its absence was of itself sufficient tomake the marriage null and void.”
The nightmare caused to the then administrators of the country bythe fluidity of the institution of the Kandyan marriage, is perhaps
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reflected in the carefully worded preamble to the Kandyan MarriageLaw Ordinance, No. 13 of 1859, by which for the 1st time registrationwas made essential for the validity of a Kandyan marriage. Thatpreamble reads; –
"Whereas it was agreed and established by a convention signed atKandy, on the 2nd day of March, in the year of Christ 1815, that thedominion of the Kandyan Provinces was vested in the Sovereign of theBritish Empire, saving to all classes of people in those Provinces, thesafety of their persons and property, with their Civil rights andimmunities according to the Laws, Institutions, and Customsestablished and in force amongst them. And saving always to theSovereign of the British Empire, the inherent right of government toredress grievances, and reform abuses in all instances whatever,particular or general, where such interposition shall becomenecessary. And whereas, accordingly, the rights and liabilities of theKandyans, (as far as they have not been affected by LocalOrdinances), have always been adjudicated upon by Courts of Law ofthe island, in accordance with the Laws, Institutions and Customs,established among the Kandyans; and whereas the right reserved asabove-mentioned to the Sovereign has from time to time, through theGovernors and the Councils of this Island, as the circumstances of thepeople have become changed by the influence of a just Government,the spread of education, and the extension of commerce;
And whereas the customs of the Kandyans, now considered as lawregulating the contract of Marriage, permits a man to have more thanone living wife, and a woman to have more than one living husband.
And whereas this custom is wholly unsuited to the presentconditions of the Kandyans, and is in no way sanctioned by theirNational Religion; and whereas such custom is a great hardship andoppression to the industrious classes, and the frequent cause oflitigation, leading to murders and other crimes;
And whereas from the circumstances aforementioned, theMarriage custom of the Kandyans is become a grievance and anabuse, within the meaning of the said Convention, and a large andinfluential portion of the Kandyan people have petitioned for redressand reform of the same. And whereas it is expedient, in order to such
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redress and reform, that Her Most Gracious Majesty should, inaccordance with the said Convention, make provision through theLegislature of this Island for the contracting and solemnizing ofMarriages within the said Provinces, and for registration of suchMarriages, and for the dissolution of such Marriages and mattersrelating to the same."
By that Ordinance registration was made compulsory (section 2)for the validity of a Kandyan Marriage, which feature wascontinuously adopted by subsequent legislation. Poligamy was madeillegal (section 6) and punishable (section 33). There was norequirement to specify the character of marriage at registration i.e.whether diga or binna. About the working of that Ordinance, Modderat pages 28-29 states, {with the tinkering which the main enactmenthad received from the amending Ordinances No. 4 of 1860, 8 of 1861and 14 of 1866, the true effect of this legislation was not realized tillsome time afterwards. Sir Hercules Robinson, (afterwards LordRosmead), then Governor, wrote in 1868:- 'It is probably within themark to assume that two – thirds of the existing unions are illegal, andfour – fifths of the rising generation, born within the last eight or nineyears, are illegitimate. The oldest child born since the bringing intooperation of Ordinance No. 13 of 1859 cannot now be more than nineyears of age; but fifteen or twenty years hence, or sooner, if mattersbe left as they are, a state of antagonism must arise between thenatural and legal claimants to property, which is impossible tocontemplate without dismay.’ The Ordinance No. 13 of 1859 wasrepealed by the Amended Kandyan Marriages Ordinance No. 3 of1870 which enabled inter alia the type of marriage to be specified atregistration of the marriage; if not specified the marriage waspresumed to be contracted in diga. Unions contracted before andafter the Ordinance No. 13 of 1859 came into operation werevalidated and issues of such unions were legitimized.
Section 39 read – “The entry as aforesaid in the register ofmarriages and in the register of divorces shall be the best evidenceof the marriage contracted or dissolved by the parties, and of theother facts stated therein. If it does not appear in the register whetherthe marriage was contracted in Binna or Diga, such marriage shall bepresumed to have been contracted in Diga until the contrary beshown.” The Kandyan Marriage and Divorce Act, No. 44 of 1952
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repealed Ordinance No. 3 of 1870 and section 28 of this Act retainedthe “best evidence" rule.
Judicial decisions, however, relating to section 39 of OrdinanceNo. 3 of 1870 appear to have applied the “best evidence" rule withsome degree of laxity, because most of the entries in the registerswere not contemporaneous, but have been made long after the defacto or customary marriage took place. See Ukku v. Kirihondat20>.Dingirihamy v. Mudalihamy et a/(21). Sinno v. Appuhamy<54). It was heldin a series of cases that the entry regarding the character of marriageis not conclusive and could be rebutted by evidence to the contraryand that section 39 itself indicated the exceptional cases in whichoral evidence may be permitted. The intention of the legislature inenacting section 39 appears to have been frustrated by this line ofjudgments.
Forfeiture and Reacquisition of Diga Married Daughter of Rightsto Paternal Inheritance.Mr. Goonesekera for the 1st defendant-respondent contended thatalthough the old treatises such as Sawers, Armour and NitiNighanduwa may not have been clear on this matter, preferring torestrict the rights of the diga married daughter to one of maintenanceonly, judicial decisions did recognize the rights of the diga marrieddaughter preserving or reacquiring the right of succession to paternalinheritance. Hayley at pages 379 to 382 regarded the exceptionmade in the case of a diga married daughter who has kept a closeconnection with her father’s house by certain “modern" judgmentscontrary to the principle of Kandyan Law. As regards reacquisition ofbinna rights by returning to the mulgedera Hayley at page 389summarized the position as follows: “If the diga married daughterreturns during her father’s lifetime, and is allowed to settle on theestate in binna with her former husband or a new husband sheacquires all the rights of a binna married daughter.” “If the digamarried daughter returns after her father’s death, she does notrecover her right to succeed, unless the other heirs themselves giveher in binna marriage, or expressly consent to her marriage witheither her former husband or a new husband being considered abinna marriage.” “Diga married daughter who returns in destitutecircumstances is entitled to maintenance out of the family estate evenin the hands of a purchaser for value."
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Judicial decisions placing strong reliance on the concept ofattachment to or severance from mulgedera the sole criteria todetermine the character of the marriage proceeded to decidewhether the diga married woman forfeited or reacquired the right toinherit paternal property. In Kalu v. Howwa Kiri1'2* it was held thatgoing out in diga with a man although no valid marriage wascontracted worked forfeiture of rights to inherit father’s property. InChelliah v. Kuttapitiya Tea and Rubber Co.lB) it was held that a digamarried daughter remaining in the mulgedera does not forfeit herrights to inherit paternal property. In Mampitiya v. Wegodapela(S> itwas held that if the bride was not conducted in accordance withcustom but she remained in the mulgedara, the forfeiture was neverconsummated. In Appuhamy v. Kiri MenikdA5) it was decided thatkeeping close contact with the mulgedera after the diga marriagedoes not work forfeiture of the right to inherit paternal property by adiga married daughter; however, whether the diga married womanpreserves her binna rights or reacquires them, her husband willcontinue to possess the rights of a diga married husband. SeeSeneviratne v. Halangodam.
Some later decisions have taken the view that where forfeiture hastaken place by reason of diga marriage, it is not the connection withthe mulgedera which restores binna rights, but it is the waiver of theforfeiture by the father or those who were entitled to paternalinheritance which mattered; the evidence of that being theconnection of the mulgedera. See Bertram C.J. in Banda v.Anguralam. In Appu Naide v. Heen Menika{i7). Basnayake J.preferred to apply the doctrine of acquiescence rather than theassociated doctrine of waiver applied by Bertram C.J.; so didTambiah J. in Dingiri Amma v. Ratnatilaka{'7). In Gunasena and Othersv. Ukkumenika and Others, Tennakoon C.J. called it waiver offorfeiture – estoppel by conduct or representation which he said wasno part of the Kandyan Law.
THE KANDYAN LAW COMMISSION
In 1927, in pursuance of a resolution adopted by the LegislativeCouncil, a Commission was appointed to “codify" the Kandyan Law.However in 1930, that Commission was terminated and the KandyanLaw Commission was appointed consisting of the same personnelwith the exception of Dr. Hayley who was substituted as the Chairman.
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The new Commission was appointed with amended terms of referenceviz. “for the purpose of considering the present state of the KandyanLaw and making recommendations thereon”. (Dr. Hayley resignedlater; and most other personnel changed from time to time).
The report of the Commission was published in September 1935as Sessional Paper xxiv of 1935. I shall set down in full the portion ofthat report (sections 168 to 176 at pages 23 and 24) relevant to thedecision in this case.
Children – (i) Children: The position of daughters married indiga and binna and unmarried daughters.
Exclusion of Diga Married Daughter from her Father’s Estate –
The comparatively simple rule excluding the diga married daughterfrom the inheritance has become complicated at the outset owing tothe modern ideas regarding marriage, and, in particular, therequirement of registration. It is true that, according to Kandyanideas, it was the conducting of the daughter away from the father’sfamily, with the dowry, that was the origin of her exclusion, but then inthe early times the conducting of a daughter by a man of equal castewith the consent of her relations constituted a marriage, particularly inthe case of low rank who could not afford costly ceremonies.
Where, therefore, decisions like Kalu v. Howwa Kirim havelaid down that the departure of the daughter without registration ofthe marriage is sufficient to cause a forfeiture, although they appearto follow Kandyan principles, they, in fact, lead to curious results. Thewoman’s marriage will not be recognized in law. She will, therefore,not only lose her share in the father’s state, but she will also beunable to claim life interest in her husband’s acquired propertyshould he predecease her, and her children being illegitimate, will notbe able to succeed to their father’s paraveni.
Conversely, this departure with the husband was held to beso essential, in Mampitiya v. Wegodapelal9). that notwithstanding theregistration of marriage as a diga one, the Court allowed the fact thatthat daughter continued to live with her parents virtually to convert itto a binna marriage, entitling her to a share in her father’s estate. Theresult of this decision is to allow proof in every case of the nature of
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the marriage in order to contradict the register, although section 39 ofOrdinance No. 3 of 1870 says that registration of the nature of themarriage shall be the best evidence.
As it is only in matters connected with succession that thedifference between diga and binna marriages is of importance, weare of opinion that modern conditions make it advisable to enact thata marriage registered as diga marriage should be deemed to be adiga marriage, and a marriage registered as a binna marriage shouldbe deemed to be a binna marriage, and conversely that theexclusion of the daughter from the inheritance will only take placewhere there has been a diga marriage valid in law, and contractedduring the life time of her father.
Diga Married Daughter who has kept up a closeconnection with her Father’s House. – A similar matter needingexamination is the position of a diga married daughter who has “kepta close connection with her father’s house.” Starting with certainobservations of Pereira J. in 1905 in the case of Dingiri Amma v.Ukku Bandana series of modern decisions, of which reference needbe made only to Appuhamy v. Kiri Menikait5), has evolved a rule,which was probably unknown to Kandyan Law, that a diga marrieddaughter who keeps up a close connection with her father’s housedoes not forfeit her rights to inherit from her father’s estate.
Two other questions which may also be examined at thisstage are those of a diga married woman who acquires the status ofa binna married woman by reason of a subsisting diga marriagebeing altered into a binna one, and of a binna married woman whoacquires the status of a diga married woman by reason of hersubsisting binna marriage being altered into a diga one.
There is no doubt that Kandyan Law recognizes both thesecases, but it is not necessary to deal in detail with the law relating tothem, nor to examine further the rights, if any, under the old law, of adiga married woman who has kept up a close connection with herfather’s house, because we are of opinion that the time has comewhen an end must be made of the nice questions which arise and the
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interminable argument and litigation that they give occasion to, onthese cases continuing to be accorded legal recognition, and wouldtherefore recommend that it be declared that a marriage registeredas in diga or binna shall for all purposes be deemed to be a marriagein diga or binna as the case may be, and that in no circumstances•can a marriage, once registered as in diga be altered into a binnaone, and vice versa.
We are of the opinion.that the recommendations if given legaleffect will settle several vexed questions and close up for all time afertile source of litigation.
The recommendations of the Commission relevant to the above-mentioned matters are given at page 40 of the report and areexpressed in the following manner;
(i) A marriage registered as a diga marriage should always bedeemed to be diga marriage, and a marriage registered as abinna marriage should always be deemed to be a binna marriage.
in the case of a daughter, her exclusion from the inheritanceto take place only where there has been a diga marriage valid inlaw and contracted before the death of the father.
Where a daughter is married in diga after her father’s deathand the other heirs are willing to make a settlement on her,provision to be made whereby the other heirs shall have a right ofemption at the market value of her share.
Since certain speculative arguments seem to have beenpresented in the earlier case on what may or may not have transpiredin the State Council at the passage of the Ordinance, I shall brieflyrefer to some important facts obtained from the National Archives inthat regard. The Draft (Bill) dated 1.12.1936 of the proposedOrdinance and titled “an Ordinance to declare and amend theKandyan Law in certain respects" gave the objects and reasons asfollows:- “The object of this Bill is to give Legislative effect to therecommendations made by the Kandyan Law Commission which waspublished as Sessional Paper XXIV of 1935”.
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Clause 9 of the Bill read:-
9(1). A marriage contracted in binna or in diga as the case maybe, or deemed by the provisions of the Amended Kandyan MarriageOrdinance, 1870, or any other law for the time being in force, to be orto have been so contracted, shall be and until dissolved shallcontinue to be, for all purposes of the law governing succession tothe estates of deceased persons, a binna or a diga marriage, andshall have full effect as such; and no change in the residence ofeither party to the marriage, and no conduct of either party to themarriage or of any other person, shall convert or deemed to haveconverted a binna marriage into a diga marriage, or a diga marriageinto a binna marriage, or cause or deemed to have caused a personmarried in diga to have the rights of succession of a person marriedin binna, or a person married in binna to have the rights ofsuccession of a person married in diga.
Whenever the rights of any person in relation to the law ofintestate succession under this Ordinance or otherwise depend uponor are affected by the fact that any person is married, or married indiga or binna, as the case may be, the marriage must be a marriagevalid in law, and, in particular, a woman shall not lose any right towhich she would otherwise be entitled by reason of her having lefther parents' house and gone out in diga, unless she shall havecontracted a marriage valid in law.
The draft was referred to a Select Committee of the State Counciland the only amendment adopted regarding clause No. 9 aforesaidappears to be that it should not be given retrospective effect. Theclause then came up for consideration as amended (in the presentform as it appears in the Ordinance) and passed by the Council withthe rest of the clauses.
Section 9 of the Ordinance reads;
9(1). A marriage contracted after the commencement of thisOrdinance in binna or in diga shall be and until dissolved shall
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continue to be, for all purposes of the law governing the successionto the estates of deceased persons, a binna or a dlga marriage, asthe case may be, and shall have full effect as such; and no changeafter any such marriage in the residence of either party to thatmarriage and no conduct after any such marriage of either party or ofany other person shall convert or deemed to convert a binnamarriage into a diga marriage or a diga marriage into a binnamarriage or cause or deemed to cause a person married in diga tohave rights of succession of a person married in binna, or a personmarried in binna to have rights of succession of a person married indiga.
Where after the commencement of this Ordinance a womanleaves the house of her parents and goes out in diga with a man, butdoes not contract with that man a marriage which is valid accordingto law, she shall not by reason only of such departure or going outforfeit or lose or deemed to have forfeited or to have lost any right ofsuccession to which she is or was or otherwise entitled on the deathof any person intestate.
Construction of Section 9 of the Kandyan Law Declaration andAmendment Ordinance No. 39 of 1938Before the earlier case between the parties was decided, therewere few decisions of the Supreme Court, where the view was takenthat a diga married daughter, having married after the Kandyan LawDeclaration and Amendment Ordinance came into operation, cannotbe admitted to binna rights in view of section 9 of the Ordinance. SeeGunasena and Others v. Ukkumenika and Others,s0), Yaso Menika v.Biso Menika(53) and as obiter in Alice Nona v. G. Sugathapaiam.
It was common ground between the majority view and the minorityview in the earlier case that according to the Kandyan Lawapplicable before the Ordinance came into operation, it was possiblefor a woman married in diga to show that binna rights werereacquired by her (a) during the subsistence of the marriage and (b)even after dissolution of the marriage. The majority and the minorityview differed on the construction given to the words "shall be and
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until dissolved continue to be" in section 9(1). The majority view wasthat it was these words which inhibited reacquisition of binna rights ofa diga married woman only during the subsistence of the marriageand not after dissolution of the marriage.
But before I consider which of the two constructions is correct, letme advert to a new argument presented to us by Mr. Goonasekerawhich was probably not presented to Court in the course ofarguments in the earlier case. It is Mr. Goonasekara's contention thatthe subsection 9(1) is applicable only to determine rights ofsuccession under the Kandyan Law which flow from forms ofmarriage, like succession of a diga married widower to his deceasedwife’s estate or to a child or to rights of succession on death of ahusband; the section does not extend to cover rights of successionwhich are not dependent on marriage; if the correct position taken bythe long line of judicial decisions is that the departure from theparental house that results in the loss of rights of inheritance and notthe form of marriage, then there is nothing in subsection 9(1) to altera diga married daughter's right to paternal inheritance if in fact therewas no severance from the mulgedara or there was a departure andsubsequent return to the mulgedara. Mr. Goonasekara submits thatthe construction he advances is strengthened by subsection 9(2)which recognizes loss of rights by mere departure without marriage,leaving open for reacquisition of rights on return.
It appears to me that attachment or severance from the mulgedaraloomed large in deciding acquisition of rights at a time whenmarriage laws were not well defined. The element of registrationintroduced to confer validity on the Kandyan marriage with theconcomitant evidentiary value attached to the entries in the marriageregister has substantially altered the picture. Subsection 9(2) refers toa situation where a woman goes in diga with a man but does notcontract with that man a valid marriage. In that case she does notforfeit any right of succession which she is or was entitled on death ofany person intestate. In such a situation, in relation to paternalproperty she has to be treated in all probability as an unmarrieddaughter. An unmarried daughter's position before the Kandyan Law
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Declaration and Amendment Ordinance came into operation was thatin the first instance, on the death of her father she shared theinheritance equally with her brothers and binna married sisters; butthis interest was temporary or defeasible or transient joint interestwhich she later lost by a subsequent diga marriage (Hayley 273 &278). The Ordinance made a significant change in this regard, whichI think has direct bearing on the problem at hand. Subsection 12(1) ofthe Ordinance reads:-
“The diga marriage of a daughter after the death of her father shallnot affect or deprive her of any share of his estate to which sheshall have become entitled upon his death, provided that if within aperiod of one year after the date of such marriage the brothers andbinna married sisters of such daughter or any one or more of them,but if more than one then jointly and not severally, shall tender toher at the fair market value of the immovable property constitutingthe aforesaid share or any part thereof, and shall call upon her toconvey the same to him or to her or them, such daughter shall soconvey and shall be compellable by action to do so."
It is significant that the right of emption is not given to any digamarried sister who never left the mulgedara or reacquired binnarights by readmission to the mulgedera.
In this background let me consider the meaning of the subsection9(1) taking it part by part.
A marriage contractedA valid marriage contracted in terms of the law currently inoperation. Section 3 (b) (regarding registration); section 5 (1)(prohibited degrees of relationship); section 6 (relating to a secondmarriage without dissolving the first) of the Kandyan Marriage andDivorce Act, No. 44 of 1952, are all attracted. Going in diga with aman sans registration is no marriage.
After commencement of the OrdinanceAccording to section 2, after 1.1.1939.
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In binna or diga
The two types of marriage recognized in Kandyan Law. These arenot defined in the Ordinance and for that matter not even in theKandyan Succession Ordinance or Kandyan Marriage and DivorceAct.
shall be and until dissolved continue to be,The marriage status ends with dissolution; therefore the marriagewill be diga or binna as long as the marriage subsists – until it isdissolved; no marriage could be switched midstream from one typeto another. Obviously, it could not be so switched after dissolution.
for all purposes of the law governing succession to the estatesof deceased persons,The point at which succession to the estates of deceased personscould take place is not restricted to the period of subsistence of themarriage and there is no room to assume it is so restricted. The pointat which succession takes place could be during the subsistence ofthe marriage or after dissolution. In the case of the succession to theestates of husband and wife inter se, it must necessarily happen afterthe death of one party and therefore after dissolution of the marriage.
a binna or diga marriage, as the case may be, and shall have fulleffect as such;A marriage cannot be binna for one purpose and diga for another;or partially binna or partially diga.
and no change after any such marriage in the residence of eitherparty to that marriageAfter such marriage, means after the marriage contract takesplace; and therefore includes both the period during which themarriage subsists and the period after its dissolution.
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and no conduct after any such marriage of either party to thatmarriage or of any other personHere too, the term after any such marriage, includes both periodsof subsistence of marriage and after its dissolution. Conduct wouldinclude, execution of deeds, enjoyment of property, reception byparents or brothers etc.
shall convert or deemed to convert a binna marriage into a digamarriage or a diga marriage into a binna marriageThis idea of conversion of one type of marriage into another seemsto suggest subsistence of the marriage and it therefore relates tochange of residence of parties to the marriage and conduct of theparties as aforesaid, after marriage, but before dissolution ofmarriage.
or cause or deemed to cause a person married in diga to haverights of succession of a person married in binna, or a personmarried in binna to have the rights of succession of a personmarried in diga.
No change of residence of either party to that marriage, and
No conduct of either party to that marriage or of any otherperson;
both (change of residence and conduct) taking place after suchmarriage, which includes the period after dissolution as well, cause…a person married in one type of marriage to have rights ofsuccession of a person married in the other type.
ConclusionFor the above reasons I hold that the earlier decision waserroneous in law. Kiribindu, in terms of section 9 (1) of the Ordinance,could not have preserved or reacquired a right of succession to
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paternal property, by reason of her having contracted a digamarriage. Her change of residence or conduct after marriage couldnot have altered her rights. She gets no interest from the landssought to be partitioned.
The appeal is allowed and the judgments of both courts beloware set aside. Judgment is entered dismissing the plaintiff's action.The parties will bear their own costs of this Court and of all Courtsbelow.
We are indebted to learned counsel for their invaluable assistance.WADUGODAPITIYA, J.
I have had the benefit of reading the judgment of my brother,Dheeraratne, J. and must state that the facts of this case have beenadequately set out by him and need no further elaboration. On theapplication of the law to the facts, however, I hold a different view.
There is no dispute that the question that arises for adjudication inthis case is one of succession by the daughter, Kiribindu (plaintiff-respondent) to a share of the property of her late father, Ukkuwa. Thevital or relevant date which has to be taken into account, therefore, is,the date of Ukkuwa's death, and, the pivotal question that arises forconsideration is, "what was Kiribindu’s status on the day her father,Ukkuwa, died?;" for, as Wood Renton C.J. (with de Sampayo J.,agreeing) said, in Siripaly v. Kirihamem: "It is only reasonable that insuch circumstances the binna married daughter's title to a share inthe paternal inheritance should be held to have crystallized at thetime of her father's death." The answer to this question would, in myview, determine whether or not Kiribindu is entitled to a share of thepaternal inheritance. Kiribindu’s father Ukkuwa died in 1957, andthere is no question of the fact that, at her father’s death Kiribinduwas an unmarried woman living in her father's house; never havingsevered her connections with the mulgedera. Kiribindu marriedPiyasena in diga on 27.7.39, but continued, notwithstanding the digamarriage, to live in her father's house (the mulgedera)-, never having
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left it or severed connections with it. Although this marriage wasdissolved on Piyasena's death on 30.7.1946, Kiribindu nevercontracted a subsequent marriage but continued as before, to live inthe mulgedera.
It is of importance to note that even though her marriage certificatestated that she married in diga, Kiribindu was never conducted out ofthe mulgedera either by her husband Piyasena or by his family. Onthe contrary, the couple, after their diga marriage, continued to live inthe mulgedera. The fact is not contested, that Kiribindu never left herfather's house, for the reason that she was needed there to fulfil afamily obligation. It appears that sometime prior to her marriage toPiyasena, her sister-in-law, the wife of her only brother, Rana, diedprematurely, leaving three minor children (1st defendant-appellant,and the 4th and 6th defendant-respondents); the responsibility forwhose care and upbringing naturally devolved on Kiribindu. Thus, thethen unmarried Kiribindu was in fact required by her father and heronly brother, Rana, to remain in the mulgedera in order to look afterthe latter’s three minor children, and, function as their foster mother.Further, according to the admitted facts, this situation continuedwithout change despite her subsequent marriage in diga to the afore-mentioned Piyasena in 1939. It needs to be mentioned that it is thisself-same brood of three minor children, who, as the 1st defendant-appellant and the 4th and 6th defendant-respondents, are nowseeking to contest Kiribindu’s claim to her paternal inheritance.
Thus it was, that even though the certificate of registration ofmarriage stated that the marriage was in diga, Piyasena andKiribindu continued after their marriage, to live in the mulgedera, andKiribindu, even after her husband's death in 1946, never remarried,but continued to live in the mulgedera. The important fact then, is thatall her life, i.e. before her marriage, after her marriage and during herwidowhood, Kiribindu always lived in her father's house, themulgedera, and never left it or severed connections with it eitherphysically or otherwise. Therefore, when her father died in 1957, shewas in fact an unmarried daughter living in the mulgedera as set outabove. Hence, in the particular circumstances of this case, questions
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such as re-acquisition of rights, reversion, conversion of one type ofmarriage to another, severance from the mulgedera, change ofresidence and return, subsequent conduct of the parties to themarriage, acquiescence, waiver of forfeiture etc., do not arise.
According to the submissions of learned Counsel, the lawapplicable is the Kandyan Law Declaration and AmendmentOrdinance No. 39 of 1938 (date of assent: 1st January, 1939) andsection 9(1) thereof states as follows:-
"A marriage contracted after the commencement of this Ordinancein binna or in diga shall be and until dissolved shall continue tobe, for all purposes of the law governing the succession to theestates of deceased persons, a binna or a diga marriage, as thecase may be, and shall have full effect as such; and no changeafter any such marriage in the residence of either party to thatmarriage and no conduct after any such marriage of either party tothat marriage or of any other person shall convert or be deemed toconvert a binna marriage into a diga marriage or a diga marriageinto a binna marriage or cause or be deemed to cause a personmarried in diga to have the rights of succession of a personmarried in binna, or a person married in binna to have the rights ofsuccession of a person married in diga.
Applying the law to the facts, one finds that the crucial words asfar as this case is concerned are: “…and, until dissolved shallcontinue to be …" This is to say, a diga or binna marriage shallcontinue to be such only as long as the marriage itself subsists. Oncethe marriage is dissolved, the labels "diga" and “binna" fall away andcease to apply, and once that happens, the words “diga" and “binna"cease to be of any consequence, “for all purposes of the lawgoverning the succession to the estates of deceased persons.” Thewords quoted above, viz, “until dissolved shall continue to be”, areindeed essential for the correct working of the section. For one thing,it obviates difficulties which would arise, e.g., in a situation where awoman married in diga, chooses, after the dissolution of suchmarriage, to contract a marriage in binna, during the lifetime of her
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father, and, to go even further, where, upon the dissolution of suchsecond marriage, she contracts a third marriage, this time in diga,once again! Then again, it seems clear that the labels "diga" and“binna” cannot exist independently, by themselves, but mustnecessarily qualify and apply only to a subsisting marriage. Thus, ifthere is no marriage subsisting, questions regarding diga and binnacannot arise in the first place. It is important to note also, thatnowhere is there even a suggestion that the status of widowhoodmust continue to bear the yoke of diga or binna for life.
Therefore, a marriage contracted in diga, as in the instant case,“shall for all purposes of the law governing the succession to theestates of deceased persons," be and continue to be a digamarriage until, and only until dissolved. To repeat, Kiribindu'smarriage in diga was dissolved upon the death of her husbandPiyasena in 1946 whilst her father, Ukkuwa, was still alive.Thenceforth, in terms of section 9 (1), she ceased to be a diga-married woman and assumed the status of a single unmarriedwoman. And, if as set out above, she never re-married and never leftor severed connections with the mulgedera, she automaticallybecame entitled to a share of the paternal inheritance upon herfather's death in 1957, inasmuch as she was in fact an unmarrieddaughter.
Thus, it appears that section 9 (1) of the Ordinance applies only tomarriages which in fact subsist on the relevant date. It does not applyto the facts of, and will not govern the instant case, where themarriage has been dissolved and has ceased to exist. Furthersupport for this preposition may be had from the sub-heading andthe marginal heading to section 9, both of which deal only with“marriages", i.e. subsisting marriages.
Therefore the question that has arisen in the instant case, viz:whether the daughter, Kiribindu is entitled to succeed to a share ofher paternal inheritance, must be decided upon considerations whichare independent of section 9 (1) of the Ordinance. As set out above,it is my view that Kiribindu, the Plaintiff-respondent in this case is
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entitled to her natural rights of inheritance, and must succeed to herpaternal inheritance in terms of the law of succession. Since she wasone of two children of the deceased Ukkuwa, she would be entitled tohalf the paternal inheritance.
I would therefore dismiss this appeal with costs.
Appeal allowed.
Plaintiff- 1st respondent’saction dismissed.